[YWH S1E10] Alternative Workweeks
Imagine a three-day weekend every week, sign me up! I’ve often commented on how nice it would be to work all weekend then get five days off. I’m sure you have heard of somebody actually having a unique schedule like this that affords them more days off than you. But what is the magical schedule and how does it work? A work schedule that goes against the traditional 8-hour day for a total of 40 hours per week is known as an Alternative Work Schedule (AWS) or Alternative Workweek.
If you work in a state that is governed by the Fair Labor Standards Act (FLSA) with respect to overtime pay, you can work as many hours as you like in a workday, assuming your employer agrees to it, as long as you don’t exceed 40-hours of work in the respective workweek. So, if you wanted to work four 10-hour days and take every Friday off, you could do it as long as your employer agreed to it. Mutual agreement between employer and employee is the key and it may be easier for non-client facing positions to achieve than a position that requires customer interaction.
But, what if you work in Alaska, California, Colorado, or Nevada? Each of these states has established overtime rules that favor the employee (sorry employers) whereby overtime pay is due if you work more than 8-hours in a workday AND/OR more than 40-hours in a workweek if you are in Alaska or Nevada. For Colorado, if you work more than 12-hours in a workday AND/OR more than 40-hours in a workweek you’ll get overtime pay. California has the same overtime rules as Alaska and Nevada with the added bonus of overtime for the first 8 hours on the seventh consecutive day of work in the workweek even if the employee has not exceeded 40-hours in the workweek. Of the aforementioned states, Alaska and California allow alternative workweek schedules. Alaska is fairly simple, according to NFIB, a Flexible Work Plan Form needs to be filed with the Alaska Department of Labor and once approved, included in the affected employee’s personnel file along with a copy of the approved plan signed and dated by the employee. This alternative work schedule is allowed as long as its intent is to provide longer time off for the affected employee(s), not to evade the payment of overtime. Well, that doesn’t sound too bad, California should be similar then, right? C’mon!! California has more minimum wage variations than you can shake a stick at. When I consult with a client I can’t answer their questions until I determine what County or Counties their employees work in, what City or Cities their employees work in, and how many employees they have. California is like its own country and the complexities of their alternative work schedules are no different. If you are an employer in California looking to adopt an alternative workweek schedule, you would need to start by reviewing the IWC Wage Order specific to your industry, there are 17 wage orders in all. If it is allowed it will indicate as such in your wage order. Assuming your wage order allows it, you would then need to do the following:
- Provide written notice to the affected employees regarding your intent to implement an alternative work schedule
- Provide written notice at least 14 days prior to the vote regarding the effect on employee wages, hours and benefits
- Have a vote by secret ballot at the place of employment during work hours
- The alternative workweek schedule is approved if at least 2/3 of the affected employees vote yes
- Notify employees of the results
- Send a written notice to the Department of Industrial Relations, attention Alternative Workweek Election Results to include the following:
- Name of the business
- Street address
- City, county, state, and zip code
- Nature of the business
- Date of the election
- Date of the letter
- Final and full tally of the vote
- Size of the affected work unit
- Work schedule(s)
- Allow at least 30-days before implementing. Be sure to check the DIR website to see if it is showing in their database, if it is not, do not implement it
- Keep copies of all documents
- Provide a kidney (your choice; not really, just making sure you’re paying attention!)
This is lengthy but not altogether horrible, right? Well, what isn’t readily available to research in California are the things that make your new alternative workweek schedule invalid. First, once you adopt a schedule you must place specific employees on specific days. For example, if you adopted a 4/10 schedule and Jane Doe is scheduled Mon – Thurs, and she takes off any of her scheduled days and works a different day she is now entitled to overtime over 8-hours, not 10-hours on that alternate day. Why? Because it is not one of her normally scheduled workdays. Second, if the initial group that voted yes to implement the alternative work schedule drops below 50%, you will need to suspend the use of this alternative workweek schedule and go through the whole voting process again. Finally, even with an approved alternative workweek schedule, an employer still needs to allow employees to work a standard five-day 8-hour schedule for those that can’t work the alternative schedule due to family needs, other employment wasn’t employed when the vote occurred, etc.
The spirit of an alternative work schedule is to allow an employer the flexibility to run their business without excessive overtime while allowing employees to benefit from more time off. However, many employers us it as a “get out of jail free card” with respect to the overtime pay and are getting burned as a result. Consider your options very wisely, if it seems too good to be true it probably is.