?Under California law, employees normally accrue daily overtime for hours worked over eight hours in a day. Alternative workweek schedules (AWS) permit workplaces to adopt different schedules longer than eight hours without accruing overtime. This may be needed due to health and safety concerns or industry practices that mandate longer shifts. It may also be desired to provide employees with greater flexibility by shortening the overall workweek.
However, the process is not as easy as the company unilaterally deciding to have an AWS. California requires specific steps to be followed for a valid AWS.
Is an AWS Right for Your Workplace?
An initial consideration is whether the business needs flexibility in scheduling its workers. An AWS may not work for employers who need to vary employees’ work hours or days worked. An AWS must be a fixed schedule of days of the week and start and end times, which can be rotational shift schedules or seasonal shift schedules as long as they are “regularly recurring.”
Does the AWS Process Apply to Your Business?
The business must determine if the work unit seeking an alternative workweek arrangement is permitted to elect an AWS. Only employees whose work falls under Wage Orders 1 through 13, 16, and 17 are permitted to have AWS. Even if the work falls under a wage order that allows for AWS, there are differences within the orders in the types of schedules that may be adopted and in the election procedures. A business must determine the appropriate procedures for the business unit seeking the AWS.
What Steps Does a Business Need to Take to Have an AWS?
The following is a general overview of the AWS process but does not provide comprehensive detail of all steps.
The business must identify employees eligible for the AWS. The Labor Code defines a “work unit” as a division, a department, a job classification, a shift, a separate physical location or a recognized subdivision. A work unit may even consist of an individual employee so long as the criteria for an identifiable work unit are met.
The business will then proceed with an AWS election. This is a multistep process that allows employees to vote on whether to adopt an AWS.
In this process the employer provides the affected work unit or units with a proposal of the AWS in writing, designating the number of days in the workweek and the number of hours in the work shift.
Then the employer must hold a pre-election meeting with the affected business unit a minimum of 14 days prior to the election to discuss the effects of the proposed AWS. If any affected employees do not attend the meeting, the proposal must be mailed to those employees.
After the 14 days have elapsed from the initial pre-election meeting, the employer must hold a secret ballot election. The election must be held during regular work hours at the employees’ worksite and cost paid by the employer. At least two-thirds of the affected work unit must vote in favor of the AWS in order for it to be adopted.
If two-thirds of the work unit vote in favor of the AWS, the results must be reported to the California Department of Industrial Relations (DIR) within 30 days of finalizing the results.
The company must also give notice to the affected workers and provide a specific date on which the AWS will be implemented. The implementation date must be at least 30 days after the announcement of the final results of the secret ballot.
What Kind of Records Must Be Kept?
An employer implementing an AWS should maintain all copies of the proposals, employee meeting communications and election results. The employer should also keep other supporting information and documentation.
Other Considerations
It is important to keep in mind that the implementation of an AWS has no impact on California meal or rest break requirements. Employers must still adhere to the same meal and rest period timing and provisions.
Further, an AWS does not completely eliminate the employer’s obligations to pay overtime. For example, if the employee on an AWS works beyond or less than the scheduled hours of the agreed-upon AWS, the employee may be entitled to overtime or double-time pay.
A. Scott Ruygrok is an attorney with Jackson Lewis in Orange County, Calif. Sayaka Karitani is an attorney with Jackson Lewis in Los Angeles. Jeanette R. Youngblood is an attorney with Jackson Lewis in Sacramento, Calif. © 2022 Jackson Lewis. All rights reserved. Reposted with permission.
