No Clowning Around with Alternative Workweek Schedules

by Jennifer Kaiser

Business Man Juggling Work and Time, Balancing Work Schedule

An alternative work schedule (AWS) is a schedule that allows employees to complete their regular work hours on a compressed or flexible schedule by working more than eight hours each day. California permits employers to offer employees the opportunity to work an AWS, but simply choosing to do so is not enough. Regardless of employee wishes, if your AWS is not adopted and filed properly, employers remain on the hook for costly back overtime wages and expensive penalties.

Employees tend to prefer alternative work schedules as they give the opportunity to perform work outside of the traditional Monday through Friday, 8:00 am to 5:00 pm timetable. Employees enjoy reaping the benefits of long weekends with both the 9/80 and 4/10 schedules that I see elected most frequently. Employers prefer alternative work schedules for a variety of reasons including an increase to the number of shifts available in the workweek and the reduction of overtime costs but, it is important to realize that an AWS does limit an employer’s scheduling flexibility, so it is best suited for employees with consistent schedules that rarely require adjustment.

Now that you and your employees have decided that an AWS is right for you, it should be easy to set up, right? Ha! Now it is time head to the big tent to start jumping through hoops for California’s entertainment.

The first hoop is to determine which of the 17 Wage Order(s) your business falls under because that is where you will find the rules on what you must do in order to adopt an AWS and they are not all the same. Some examples include,

  • AWS workdays must provide at least four scheduled hours of work in each workday except under Wage Order #16
  • AWS workdays must pay overtime rates of pay for hours in excess of ten per day except under Wage Orders #4 and #5 (and sometimes #16)
  • AWS workweeks require two consecutive days off for employees except under Wage Orders #4, #5, #9, #10, #14, #15, & #16

Determining your correct Wage Order is like walking a tightrope and employees working for the same employer can fall under different Orders making the determination even more difficult. (That is a blog for another day!) No matter which Wage Order(s) you fall under, you need to carefully follow the scheduling rules and election procedures which are allowed under the applicable Order to avoid invalidating your election.

Assuming you have safely navigated the first hurdle, you now need to determine which work group will be affected and prepare a written disclosure statement to explain the proposed schedules (you can offer a menu of AWS options) including how they will specifically affect employee hours, benefits (e.g., vacation, sick time, holidays, etc.), and wages. You must also include information about the upcoming pre-election meeting and secret ballot election meeting. This required disclosure should be given to all employees and must also be provided in other languages if more than 5% of the affected employees speak a language other than English.

For the next hoop, we draw your attention to the center ring where we hold the pre-election meeting at least 14 days before the secret ballot election during normal working hours at the employees’ worksite. The purpose of this meeting is to give affected employees the opportunity to discuss the proposed AWS and ask any questions they may have. Employees must be paid for time spent attending this meeting and more than one meeting may be needed if it is not possible for all affected employees to attend at the same time. Employers are prohibited from coercing employees into electing an AWS and discriminating against employees for opposing an AWS. When secret-ballot meeting day arrives, two-thirds of all affected employees must vote in favor of adopting the AWS for it to be effective. If any employee is unable to vote, then their vote counts as a “no” vote.

For the grand finale, you must notify the affected employees of the final result and, if elected, and you must report the election results and submit the required documentation to California’s Division of Labor Statistics and Research within 30 days. The rules require a 30-day waiting period before implementing the new AWS to allow employees time to re-arrange their home schedules (although they can choose to begin earlier) and you must make reasonable efforts to accommodate employees who are unable to work the adopted AWS.

As you can see, there is quite a bit of juggling involved in putting a legal AWS into effect, and the first time is the most challenging, but the payoff can be well worth the effort in terms of cost savings for the company and increased employee morale. If you want support to adopt your own AWS, we offer a comprehensive AWS package with all of the necessary forms and notices – just give us a call and we will be happy to be your ringmaster!