Implementing Alternative Workweeks in California

Alternative workweeks are popular in California. One common version is the "4-10" in which employees work four 10-hour days and receive an extra day off each week. Another version is the "9-80" in which employees work four nine-hour days and one eight-hour day (typically Friday) and have every other Friday off. In the health care industry, employees may work a "3-12" schedule consisting of three 12-hour days. The benefit to the employer is that overtime need not be paid for hours worked up to 10 in one workday in an alternative workweek (up to 12 hours in the health care industry).          

An employer may implement an alternative workweek by completing a series of steps required under California law. You should review the alternative workweek provisions of the applicable IWC wage order because the requirements for an employer to adopt an alternative workweek differ slightly among wage orders. The alternative workweek is not available under Wage Orders 14 and 15.

Generally, the first step is to determine the work unit where the alternative workweek will apply. This can be an entire facility or a department, shift, or job classification. It may involve just one employee if there is only one employee in a particular job classification. Exempt employees are not included in the election process, although they may also work an alternative workweek if the nonexempt employees in their facility, department, or office select one.

Next, you must present a written proposal or agreement to the affected employees that describes a regularly scheduled alternative workweek. The proposal must specify the number of days and hours that will be worked under the proposed alternative workweek. An employer may also propose a menu of schedule options from which employees can choose. Wage Orders 1, 2, 3, 6, 7, 8, 11, 12, and 13 require that employees be provided two consecutive days off in an alternative workweek.

You must make a written disclosure to all affected employees that includes a description of the effect, if any, of the proposed alternative workweek on employees' wages, hours, and benefits (note that you may not reduce the hourly rate of pay of any employee as the result of the adoption or repeal of an alternative workweek). The disclosure must also provide notice of the time and place of meetings to be held with employees to discuss the effects of the alternative workweek. If at least 5 percent of the affected employees primarily speak a language other than English, this disclosure must be provided in such language(s) in addition to in English. Meetings of employees must be held at least 14 days prior to the secret ballot voting. The written disclosure must be mailed to employees who do not attend the meetings. 

The secret ballot election must be conducted at the worksite during regular working hours, and the employer must bear the costs of holding the election. An employer may not intimidate or coerce employees to vote either in favor of or against the proposed alternative workweek. Should any affected employee complain about the manner in which the investigation was conducted, the Labor Commissioner, after an investigation, may order the employer to select a neutral third party to conduct the election.

The alternative workweek must be adopted by a vote of at least two-thirds of the affected nonexempt employees in the work unit. If a sufficient number of employees vote in favor of the alternative workweek, the new workweek schedule may be implemented after a waiting period of 30 days. You must report the results of the election within 30 days to the Office of Policy, Research, and Legislation of the California Department of Industrial Relations. That agency lists all employers having properly adopted alternative workweeks on its website.

If you require an employee to work fewer hours than would normally be scheduled under an alternative workweek, you must pay overtime after eight hours in a workday under the normal rules. You must attempt to reasonably accommodate an employee whose religious belief or observance conflicts with an alternative workweek schedule. You must also attempt to find a work schedule of up to eight hours per workday to accommodate an employee who is unable to work the schedule adopted under the alternative workweek. You are permitted, but not required, to provide a work schedule of up to eight hours per workday to accommodate an employee hired after the election who is unable to work the alternative workweek schedule.

An alternative workweek adopted by a secret ballot election may be repealed by the affected employees in a similar manner. Upon a petition signed by at least one-third of the affected employees, a new secret ballot election must be held, and a two-thirds vote of affected employees is required to repeal the alternative workweek schedule. Such an election may not be held sooner than 12 months after the same group of employees voted in an election to adopt or repeal an alternative workweek. If the alternative workweek is repealed, the employer must comply within 60 days. An employer may also eliminate an alternative workweek arrangement on its own initiative simply by providing reasonable prior notice to employees.

James J. McDonald Jr. is a partner with the law firm of Fisher & Phillips LLC in Irvine, Calif., and author of "California Employment Law: An Employer's Guide" published by SHRM Books and available through the SHRM bookstore.