Alternative Workweek Tool Kit

Alternative Workweek Tool Kit

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California Employers Association TM

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California Employers Association ,.

ALTERNATIVE WORKWEEK TOOL KIT

This tool kit it is designed to help you develop and sustain a compliant Alternative Workweek program for your company or organization.

Contents

Before you begin using this tool kit.................................................................................................................................... 3 What is an alternative workweek schedule? .................................................................................................................... 3 Why consider an alternative workweek schedule? ......................................................................................................... 3 Overtime and double time requirements under an alternative workweek schedule .................................................. 4 Alternative workweek schedules ? Step One ? Propose a written schedule .............................................................. 4 Alternative workweek schedules ? Step Two ? Hold at least one meeting and provide a written disclosure........ 5 Alternative workweek schedules ? Step Three ? Hold a secret ballot election .......................................................... 5 Alternative workweek schedules ? Step Four ? Report your election results ............................................................. 6 Alternative workweek schedules ? Step Five ? wait 30 days before you begin the new schedule ......................... 6 Alternative workweek schedules ? Step Six ? Create the schedule ............................................................................ 7 Frequently Asked Questions .............................................................................................................................................. 7 Before you proceed here are things you should consider ............................................................................................. 8 Acceptable alternative workweek schedules ................................................................................................................. 11 Best practices ..................................................................................................................................................................... 13

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California Employers Association ,.

Before you begin using this tool kit

Not all of the alternative workweek requirements are the same for every employer. Depending on the Industrial Welfare Commission (IWC) Order that applies, you may have different obligations and restrictions concerning alternative workweek schedules. Although we have attempted to identify the most common changes and special rules within this tool kit you must carefully review your order prior to beginning the process of establishing any alternative workweek schedule.

You can find your IWC order here If you don't know which order covers you click here

You should also consult with your own labor attorney before implementing any AWS pursuant to state law. Although we have provided sample forms in this tool kit, you may wish to have your own attorney draft the applicable documents in conjunction your alternative workweek.

What is an Alternative Workweek Schedule?

An "alternative workweek schedule" means any regularly scheduled workweek requiring an employee to work more than eight (8) hours in a 24-hour period. Alternative workweeks apply only to nonexempt employees because properly classified exempt employees do not earn overtime. Alternative workweek schedules should not be confused with flexible scheduled. A flexible schedule is a workweek schedule of eight hours per day where some employees begin their shift early in the day and others begin work later that day. Flexible scheduling does not eliminate you requirement to pay daily overtime for all work in excess of eight hours in each workday.

Why consider an alternative workweek schedule?

Alternative workweek schedules provide employers with the opportunity to schedule longer uninterrupted shifts, allows them flexibility in managing a staggered workforce, and increases daily productivity.

For example, under a properly implemented alternative workweek, nonexempt employees could work four days a week for 10 hours each day, without the employer accruing any overtime liability (generally up to 10 hours per day or 40 hours per week).

The principle benefit to employees for alternative workweek schedules is that it ability to work a compressed schedule that consists of a fewer number of days.

For example, employees can often complete their work in a schedule of three or four days. Although each day of work typically exceeds eight hours, employees have more days off, less travel to and from work, more leisure time, and greater opportunities to pursue family, education, recreation, and other personal interests. In addition, by working fewer days each week they spend less time commuting to and from work, can often commute at non-peak traffic hours, and save money on gas, travel costs, and wear and tear on their cars.

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Overtime and double time requirements under an alternative workweek schedule

Although you can still require employees on an alternative workweek schedule to work overtime, your overtime and double pay obligations are somewhat different than the traditional schedule of five eight-hour days. Under an alternative workweek schedule, you are required to pay one and one-half times an employee's regular rate of pay for:

? All worked performed in any workday in excess of the regularly scheduled hours established by the alternative workweek agreement, up to 12 hours a day.

? All worked performed beyond 40 hours per week.

Under alternative workweek schedules, you would pay two times their regular rate of pay for:

? All worked performed in excess of 12 hours per day. ? Any work in excess of eight hours on days other than those regularly scheduled by the alternative

workweek agreement.

If the employee volunteers to work fewer hours than their scheduled as part of an AWS, there is no overtime liability. Best practice is to have the employee put their request to leave early in writing (even email) to avoid disputes later as to whether it was voluntary. You can use this Sample: Alternative Workweek Waiver.

And just like traditional schedules, overtime hours do not pyramid under alternative workweek schedules. This means that hours paid at one and one-half or double the regular rate of pay are not included in determining when 40 hours have been worked for the purpose of computing overtime compensation.

Special premium pay rules in IWC Orders 4 and 5 for employees in the Health Care Industry

Employees in the Health Care Industry who have opted for a 12-hour shift in any one workday provided, need not be paid a premium rate until after 12 hours in a day. All hours in excess of 12 in any one workday, must be paid at the premium rate of double the employee's regular rate of pay. Health Care workers would also be entitled to time and one-half the regular rate of pay for all hours over 40 in a workweek.

Alternative workweek schedules ? Step One ? Propose a written schedule

After you have reviewed the IWC order that applies to your business or organization, the first step of the process requires a notification to your employees concerning the new work schedule you would like to establish.

Each proposal for an alternative workweek schedule must be in the form of a written agreement proposed by the employer. The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of work days and work hours are regularly recurring. The actual days worked within that alternative workweek schedule need not be specified. You may propose a single work schedule that would

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become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose. But if employees wish to switch to a schedule not included on the original notice, then you will have to go through the election process again, so it's important to carefully construct the units of employees that you provide notice to.

You can use this Sample: Proposal to Adopt Alternative Workweek Schedule.

Alternative workweek schedules ? Step Two ? Hold at least one meeting and provide a written disclosure

You must advise the affected employees, at a meeting held at least fourteen (14) days prior to the voting, of the effects on the wages, hours, and benefits adoption of the alternative workweek will have up on the affected employees. In addition, you must provide that disclosure in a written form in both English and, if more than five percent of the affected employees primarily speak a language(s) other than English then in that/those language(s) as well. This written disclosure must include the effects of the proposed arrangement on the employees' wages, hours, and benefits. You must mail the written disclosure to affected employees who do not attend the meeting referred to above.

You can use this Sample: Alternative Workweek Disclosure.

Alternative workweek schedules ? Step Three ? Hold a secret ballot election

In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds (2/3) vote of the affected employees in the work unit. The election must be held during regular working hours at the employees' work site and you must bear the costs of conducting this election. Only secret ballots may be cast by the non-exempt affected employees in the work unit. Any blank returned ballot or a ballot not casted is counted as a vote of "no."

Upon a complaint by an affected employee, and after an investigation by the Labor Commissioner, the Labor Commissioner may require you to select a neutral third party to conduct the election.

Special Voting Rules under Wage Order 16. All employers under this wage order must, in good faith and at least 14 days prior to the scheduled election, notify (at their last known address) all workers who would be eligible to vote under the criteria set out in the Order (i.e., employed on the job site by the employer within 30 calendar days immediately preceding the election) of the date, time and place of the election and furnish all such employees with a ballot to be brought to the election site on the date and at the time set for the election. The burden of proof that good faith efforts have been utilized to effect the notice and the delivery of ballots rest with you. If necessary, you must provide any current employee transportation to the work site where the election is held and must pay for the time reasonably lost by the employee in voting during working hours.

You can use this Sample: Alternative Workweek Secret Ballot.

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Alternative workweek schedules ? Step Four ? Report your election results

The results of any election must be reported by you to the Office of Policy, Research and Legislation within 30 days after the results are final, and the report of election results become a public document.

Within 30 days after results of an alternative workweek election are final, you must send the results of your election to:

Attn: Alternative Workweek Election Results Department of Industrial Relations P.O. Box 420603 San Francisco, CA 94142-0603

Do not include the election ballots or any records that identify individual workers who voted in the election. You do not need to report information about how an individual voted but you must maintain records of all schedule proposals, meeting communication, supporting information and documentation and election results.

Include the following information in your submission: Name of the business Street address City, county, state, zip code Nature of the business Date of election Date of letter Final and full tally of the vote Size of the affected work unit Work schedule

Once you have registered your alternative workweek schedule, you can verify that your elected schedule is on file by checking the alternative workweek elections database. It provides a listing of all California employers who have filed alternate workweek election results with the state.

You can use this Sample: Alternative Workweek Schedule DLSR Notice.

Alternative workweek schedules ? Step Five ? Wait 30 days before you begin the new schedule

Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new work hours for at least 30 days after the announcement of the final results of the election. Employees may voluntarily agree to begin work on the new schedule sooner if they wish.

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Alternative workweek schedules ? Step Six ? Create the schedule

Remember, you do not need to specify the actual days worked within the AWS before employees vote but in advance of beginning to work the schedule, you must schedule the actual workdays and the starting and ending time of the shifts. Remember, occasional changes to the schedule are acceptable as long as you provide employees with reasonable notice.

Frequently Asked Questions

Question: What happens if an employee scheduled to work 12 hours as part of an AWS, is asked to work a 12-hour shift on a different day?

Answer: Because they are not subject to an AWS that covers that day, all hours they work on that day would be considered overtime. The employee would get 1.5 times their regular rate of pay for the first eight hours and double their regular rate of pay for the last four hours.

Question: What happens if an employee scheduled to work 10 hours as part of an AWS, is sent home before their shift ends?

Answer: Don't do that. Keep them around until the shift ends. It's cheaper to pay them to do nothing than to

unnecessarily incur an hour and a half or more of overtime.

Question: What happens if an employee who is not subject to an AWS is asked to work on a day she is normally scheduled, but at a different location that has an AWS?

Answer: This work would not be subject to the AWS and would be subject to normal overtime rules, unless:

(1) the employee is told that the different location has an AWS; and

(2) the employee works at the different location for one or more full workweeks (as defined under the AWS).

If both conditions are met, the employee's overtime can be calculated the same as other employees who are subject to the AWS for each full workweek the employee works at that location.

Question: What happens if an employee who is subject to an AWS works in the same workweek at his normal location and at a location that is also subject to an AWS?

Answer: The time the employee works at his normally assigned location would be paid according to the AWS at that location. The time he works at the second location would be treated as overtime (time and a half for the first eight hours in a workday, as long as the employee hasn't yet exceeded 40 hours for the workweek and double time after eight hour in a workday or for all hours beyond 40 in a workweek). If the two locations have different workweeks, use the workweek at the location to which the employee is normally assigned.

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Before you proceed here are things you should consider

Not all of the Industrial Welfare Commission Orders provide for an Alternative Workweek

Wage Orders 15 and 16 do not provide for the election of an alternative workweek. Before pursuing an alternative workweek election, it's critical to ensure that your employees are subject to an exemption for an alternative workweek. Otherwise, you will be required to pay overtime even if employees agree to work the alternative schedule.

You must follow a strict and detailed process

Creating a valid alternative workweek schedule allowing for different overtime requirement involves a specific process includes the following:

? Proposing an alternative schedule ? Holding at least one meeting and providing a written disclosure ? Holding a secret ballot election ? Registering your election results with the State ? Serving a waiting period before you actually begin your alternative workweek

Each of these steps are covered in more detail earlier in this tool kit.

If you do not follow the election procedures, the Division of Labor Standards Enforcement (DLSE) may invalidate the election during a wage-hour audit and require you to comply retroactively with ordinary overtime requirements during the workweeks when employees worked the alternative-work schedule. You should always check with your own counsel because not all flaws in the election process or reporting requirement will necessarily invalidate your election.

Intimidation for or against a proposed alternative workweek schedule is strictly prohibited

Although you may express you position concerning that alternative workweek to the affected employees, you may not intimidate or coerce employees to vote either in support of or in opposition to a proposed alternative workweek nor may you reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. Additionally, you may not discharge or discriminate against any employee for expressing opinions concerning the alternative workweek election or for opposing or supporting its adoption or repeal.

Remedies for violating this particular section can carry heavy penalties. These include reinstatement and reimbursement for lost wages and work benefits caused by you, plus you could be liable for a civil penalty of up to ten thousand dollars ($10,000) per employee for each violation which is awarded to the employee or employees who suffered the violation.

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