California Revises Alternative Workweek Law

Spring 2009Newsletters California Update - Second Quarter 2009

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On February 20, 2009, the Governor signed a bill of amendments to Labor Code § 511, which authorize alternative workweek exemptions to overtime rules. As before, the law permits employers to propose and employees to adopt a regularly scheduled alternative workweek up to 10 hours per day within a 40-hour workweek without overtime liability for the employer. Such a proposal must be adopted by a secret-ballot election with two-thirds of the affected employees voting in favor of the change in schedule.

The amendments to § 511 state that the proposal may be either a single schedule that all workers would follow or a menu of work schedule options from which each employee in the unit may choose. The menu may include a regular schedule of five, eight-hour days, commonly known as the 5/8 week. Employees are now permitted to move from one schedule option to another, where a menu is offered, with the consent of their employer. The voting “work unit” is defined as a department, division, job class, shift or location, or subdivision thereof.

Employees may now vote to work alternating 5/8 and 4/10 workweeks, with the employer’s consent. A 4/10 workweek consists of four, 10-hour work days. Certain health care workers can adopt a workweek with up to three 12-hour days.

If an employee in an affected unit is unable to work the alternative workweek adopted by vote, the employer must make a reasonable effort to find a work schedule not to exceed eight hours per day. Employers are also required to explore reasonable accommodation of religious beliefs or observances of an affected employee that conflict with an adopted alternative workweek schedule.

As always, employees receive overtime for any hours in excess of the adopted alternative workweek schedule and for any hours over 40 in one workweek. An employer may not reduce an employee’s regular rate of pay as a result of a change in alternative workweek status. Employers must still report results of any election held under § 511 to the state within 30 days.

We expect that the Division of Labor Standards Enforcement will revise its procedures manual and the Wage Orders will be amended by the Industrial Welfare Commission. If you have any questions regarding this law, please contact your California Fox Rothschild LLP attorney.