Under California law, the default rule is that an employer must pay an employee overtime for every day that an employee works over eight hours, or, in a defined workweek, if the employee works over 40 hours. Certain employers may wish to consider an alternative to this 5/8 workweek depending on the type of work, or the number of days the business needs to be open, among other reasons. California law allows an employer to modify daily overtime, if certain restrictions are followed. These restrictions are laid out in Labor Code §511, and the Wage Order applicable to the industry that the employee is working in.

However, what might appear as an opportunity for greater flexibility regularly turns into a pitfall for the unwary employer. This is because of a couple of factors. First, California courts have held that the requirements of the election must be strictly met and any deviation from established requirements may be grounds for invalidation of the election. Moreover, as will be mentioned below, because one of the requirements of a valid election is that the alternative workweek not be in effect until 30 days after approval, subsequent elections, even if fully compliant, to retain the alternative workweek schedule cannot cure the improper initial election.

The Labor Code and Wage Orders generally require that the employer provide a written proposal of the proposed alternative workweek for each department or subdivision that it will apply to in advance of an election and it must be delivered at least 14 days prior to the election. This proposal must designate the regularly scheduled alternative workweek and it must be in any language spoken by more than 5% of its employees. This proposal must receive 2/3 or greater votes of affected employees in an election conducted by secret ballot and held during the work day at the worksite of the affected employees. If the proposed alternative workweek receives the required votes, then the employer must send a report of the election to the Office of Policy, Research and Legislation of the Department of Labor Standards Enforcement within 30 days. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer. If an election is adopted, an employer may not require an employee to work this new schedule until after 30 days from finalization of the results of the election.

As if all of the above isn’t enough, an employer must also remember that adopting an alternative workweek does not relieve an employer of its obligation to provide a second meal period or third rest break as required. As such, an employer must be careful that if an employee works over 10 hours a day that they have either provided the option for a second lunch or obtained an appropriate waiver. Similarly, an employer may be required to provide a third rest break after 10 hours of work.

Given the above, while an alternative workweek may initially sound appealing, it is critical that an employer retain legal advice prior to moving to adopt such a workweek. Poole Shaffery’s employment lawyers are ready to assist employers considering adopting such a workweek.