A Sample Guide: How To Adopt An Alternative Workweek Schedule and Avoid Daily Overtime
Adopting an alternative workweek schedule can help you avoid daily overtime obligations if you follow the procedures set out in the new law. If you already have an alternative workweek that was set up after January 1, 1998, your program must comply with the new law; if it does not, you will have to pay daily overtime beginning next year. An eight-step procedure follows to help you comply with the rules in adopting alternative workweeks. Pacific Employers has also included several sample forms to simplify the process.
Alternative Workweek Schedule
An alternative workweek schedule allows you and your employees who are not exempt from overtime to agree on a schedule of not more than 10 hours per day without the creation of daily overtime. In the most common alternative arrangement, employees work four 10-hour days. The "9/80" schedule is a plan which allows employees to work 80 hours over nine days. A 9/80 schedule is authorized only under Wage Orders 1, 4, 5, 9 and 10. Other types of scheduling being utilized include a combination schedule. This schedule allows an employee to work a combination of hours not to exceed 10 hours per day. It should be noted that Wage Orders 14 and 15 currently prohibit any type of alternative workweek.
Following the Alternative Workweek Rules
If an employer currently utilizes an alternative workweek not adopted in a secret ballot election by a two-thirds vote of the workers in a work unit, and/or exceeds 10 hours per day, you must hold a successful election. Individual employees who, as of July 1, 1999, were voluntarily working an alternative workweek under Wage Orders 1, 4, 5, 7 or 9, may request, in writing, to continue doing so without daily overtime. But this voluntary arrangement does not apply to people hired after July 1.
8 Step Method to Establishing an Alternative Workweek
Assembly Bill 60 (AB 60) authorizes the Industrial Welfare Commission (IWC) to adopt, by July 1, 2000, new procedures for setting up alternative workweeks. Until such time, there will continue to be differing opinions on the new overtime law, existing wage orders, and wage orders to be reinstated on January 1, 2000. If you elect to pursue an alternative workweek, taking the following steps will help you comply with the broadest reading of the law:
1. Identify work units to be covered. An alternative workweek must apply to a specified work unit. Existing rules define a work unit as a division, department, job classification, shift or separate location. In some situations, even a single employee may qualify as a work unit.
2. Prepare a written proposal. Describe the new schedule and its impact, including working over 8 hours in a day without overtime, on pay and benefits. You can propose a single schedule for all workers in the work unit or a menu of schedule options for employees to choose from. A schedule can fluctuate if the differences are specified in the proposal, unless workers are covered by Wage Orders 2, 3, 6, 7, 8, 11, 12 or 13. These Wage Orders require that schedules be consistent from week to week and include no more than four workdays. Wage Order 1 specifies that employees must be scheduled for 40 hours of work a week and at least four hours a day. And under most wage orders (except 4, 5, 9 and 10) employees must be scheduled for two consecutive days off.
3. Communicate with workers. Prior to the secret ballot vote, make a disclosure in writing to the affected employees, including the effects of the proposed arrangement on the employees’ wages, hours, and benefits. Advise employees and then hold one or more meetings, at least fourteen (14) days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. If at least five (5) percent of the affected employees primarily speak a non-English language, they must be notified of the alternative workweek plan in that language. You must mail the written disclosure to any employees who do not attend the meeting. Failure to comply with this paragraph shall make the election null and void.
4. Hold a secret ballot election. Employees must ratify the agreement by a two-thirds majority in a secret ballot election.
5. Have employees select schedules if you propose a menu. Each employee should select, in writing, a fixed schedule from the menu. To simplify matters, have employees initial their schedule on the written agreement.
6. Election results must be reported. The employer must report election results within 30 days to the California Department of Industrial Relations, Division of Labor Statistics Research, P.O. Box 420603, San Francisco, CA 94142.
7. Get the schedule agreement signed. Many of the existing and reinstated wage orders require that at least two-thirds of your employees voluntarily sign a schedule agreement.
8. Accommodation of employees where necessary. Each employee in the work unit is subject to the new workweek arrangement, even if they voted against it. However, the employer must try to arrange a schedule that does not exceed eight hours in a day for employees who were eligible to vote, but cannot work the new schedule. And you must explore accommodations for workers whose religious beliefs or observances conflict with the schedule. If, after the election, an employee is hired who is unable to work the alternative schedule, you are permitted, but not required, to make an accommodation for the person.
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Sample Alternative Workweek Proposal
Proposal To Adopt A Regularly Scheduled Alternative Workweek
The Company is pleased to announce that employees in the [specify the work unit, e.g., a division, department, job classification, shift or separate location] will soon have an opportunity to vote on implementing a new work schedule. Under the new schedule, employees would work [specify, e.g., four 10-hour days each week].
Under legislation effective January 1, 2000, The Company will be required to pay daily overtime to nonexempt employees who work more than eight hours in a day. Under the proposed new schedule, employees may work up to 10 hours in a day without being paid daily overtime.
[Specify benefits to employees of an alternative workweek, such as more days off per week, more time to spend with family, etc.] Additionally, [Specify negative impact to employees of an alternative workweek, such as longer hours on days worked, no overtime after 8 hours in a day, etc.] Without your agreement to this proposal, The Company generally will not approve alternative schedules of more than eight hours of work in a day.
The Company proposes the following alternative work schedule [or menu of work schedule options]: [specify days of the week and the precise hours of work each day; length of unpaid meal breaks; and, if applicable, a schedule for each shift].
Effect On Pay And Benefits
If the proposed schedule is adopted, employees in the [specify work unit] will be entitled to overtime pay only for work in excess of the regular schedule, rather than after eight hours in a day. The proposed schedule will affect your employee benefits as follows: [specify details of changes, if any; for example, effects on the accrual or usage of paid leave].
The Company will not reduce the regular rate of pay of any employee in [specify work unit] as a result of the adoption, rejection, repeal or modification of an alternative workweek schedule.
To adopt the proposed work schedule, at least two-thirds of employees in the [specify work unit] must vote in favor of the proposal.
The election will take place on [specify date(s), time(s) and location(s)], through the use of secret ballots. Employees not planning to be at work on the day of the election may fill out an absentee ballot on [specify date(s), time(s) and location(s)]. A photo ID will be required for all voting.
If the proposed work schedule is adopted, employees in the [specify work unit] will be entitled to overtime pay only as follows:
Time and a half. Employees who, on a regularly scheduled workday, work more than their regularly scheduled hours, up to 12, will receive one and a half times their regular hourly rate of pay. Time and a half will also be paid for all hours in excess of 40 in a workweek and for the first eight hours of work on a non-regularly scheduled workday.
Double time. Employees will receive double time for work over 12 hours in a day on a regularly scheduled workday, and for work in excess of eight hours on days that are not regularly scheduled workdays.
The Company will make an effort to find a work schedule not exceeding eight hours a day for any employee who is eligible to vote on this proposal but is unable to work any schedule established by the election. The Company, in its sole discretion, also may provide a work schedule not exceeding eight hours per day to accommodate any employee who is hired after the date of the election and who is unable to work any alternative schedule established as a result of the election. The Company will also explore any available reasonable alternative means of accommodating an employee's religious beliefs or observances that conflict with an adopted alternative workweek schedule, as required by law.
On [specify date(s), time(s) and location(s)], The Company will hold an employee meeting to discuss the new schedule and the impact it will have on you. Your attendance at the meeting is mandatory. If you will be unable to attend the meeting as scheduled, please notify your supervisor immediately.
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Sample Secret Ballot Vote
The Company proposes the following regularly scheduled alternative workweek: [specify schedule, including days of the week and precise hours of the day].
I vote to adopt the alternative workweek described above. I understand that if this schedule is adopted by a two-thirds vote of affected employees, I will not be entitled to be paid daily overtime, unless I work hours in excess of such schedule.
I vote to reject the alternative workweek described above.
Ballot Control No. [Specify a unique number for each ballot that does not identify the voting employee, to be done in order to insure against ballot tampering.]
Sample Alternative Workweek Agreement
On [specified date], employees in the [specified work unit] voted by at least a two-thirds majority to implement a new work schedule, as follows: [specify the new schedule or menu of schedule options, including days of the week and the precise hours of work each day]. Under the new schedule, employees may work [e.g., up to 10 hours in a day] without the payment of daily overtime. The new schedule will take effect on [specify date].
[If Company proposed a menu of schedule options, insert the following language:] Employee must select his or her new schedule from the various schedule options approved in the secret ballot election by checking one of the boxes below:
[specify option 1]
[specify option 2, etc.] - list all options in this format
Employee must initial one of the following:
___ I agree to work the new schedule as specified above.
___ I am unable to work the alternative work schedule and request a reasonable accommodation.
Employee Name (printed): ______________________________
Employee No.: ________________________________________
Employee Signature: ___________________________________
Authorized By [Company representative]:
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Copyright © 2007 by David E. Miller