California's Alternative Workweek Rules Slightly Relaxed
On February 20, 2009, legislation was enacted to amend California Labor Code section 511 and provide slightly more flexibility surrounding alternative workweek schedules. As most California employers are aware, California law permits alternative workweek schedules that provide for shifts of up to 10 hours per day (without the necessity of paying daily overtime). However, the requirements and parameters for adoption of alternative workweeks are so onerous that many employers choose not to consider alternative workweek schedules.
In response to much criticism regarding the lack of flexibility afforded both employers and employees by California’s alternative workweek law, the State Legislature passed legislation (AB 5) that is at least a baby step toward providing more flexibility. Although the new law retains the same burdensome election process for adoption of an alternative workweek, the law recognizes that if an employer offers employees a “menu of options” for alternative workweek schedules, the options may include a regular 8 hour per day/5 day per week work schedule among the menu of options. Under the former law, California’s Department of Labor Standards Enforcement took the position that a regular 8 hour per day/5 day per week schedule could not be among the menu of options for an alternative workweek. The intended effect of the new law is that allowing a standard workweek schedule among the menu of options will increase the likelihood that a sufficient number of employees will vote to adopt an alternative workweek schedule. In reality, however, this is a change without a lot of substance because even under the prior law, employers had to accommodate any employee who could not work an alternative workweek schedule and instead needed to work a regular 8 hour per day/5 day per week schedule.
The new law also provides that employees can move from one alternative workweek schedule option to another from week to week, with the employer’s consent. This is the most significant change to the alternative workweek rules, as the DLSE has previously taken the position that employees may not move from one schedule to another week to week and that doing so would invalidate the alternative workweek schedule. Under the new law, employees could, for example, work a normal workweek schedule one week and a 4/10 schedule another week, so long as both schedules were among the menu of options adopted by employees under the alternative workweek proposal and the employer consented.
Finally, the new law defines the term “work unit,” which was previously undefined in the Labor Code. In order to adopt an alternative workweek, two-thirds of the affected employees in a “readily identifiable work unit” must first vote to adopt the proposed schedule. The new law defines “work unit” to mean a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof. A “work unit” may also consist of an individual employee as long as the criteria for an identifiable work unit are met.
Although the new law provides some increased flexibility for employers and employees in adopting alternative workweeks, California’s alternative workweek requirements remain fairly complicated, both in terms of adoption and administration. This is a common area for employers to fall short on in terms of full compliance, and the new law does not go far enough in easing the ability of employers to comply.