Flexibility Added to California Alternative Workweek Schedule

California law authorizes an alternative work week schedule (AWS) of workdays exceeding eight hours without overtime pay if certain criteria are met. Classically, an alternative work schedule will be four 10-hour days, with three days off. Health care offices are common candidates for an AWS. Such flexible alternative work schedules require full advance disclosure to affected employees and the affirmative vote of at least two-thirds of those employees in a secret ballot election before performance of the work.

Effective May 21, 2009, California Assembly Bill No. 5 amended this law (Labor Code section 511) to permit an employee to opt-out of an AWS passed by the majority of his/her co-workers. This allows such worker to retain a regular five 8-hour days per week schedule. The bill also authorizes employees, with the consent of their employer, to move on a weekly basis from one work schedule to another on the adopted menu of work schedule options.

In addition, the California Division of Labor Standards Enforcement (DLSE) issued a March 23, 2009 opinion letter (online at http://www.dir.ca.gov/dlse/opinions/2009-03-23.pdf ) stating that under some circumstances, an alternative workweek schedule may be in place for only part of the year, for example rotating between a schedule of four 9-hour days and one 4-hour day during the summer months and five 8-hour days during the rest of the year.

Employers must still follow the detailed provisions of the California Industrial Welfare Commission (IWC) Wage Orders (online at http://www.dir.ca.gov/iwc/wageorderindustries.htm) when implementing or revising alternative workweek schedules and should consult with legal counsel about this and applicable California overtime laws before doing so.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best wishes, Bob Edwards