From the day we join the workforce, we are trained to think work means 8 hours a day, 5 days a week. This is especially true in California, which swoops in to reward employees with overtime pay when they work over 8 hours a day.  You might be surprised, however, to learn that California allows for some flexibility. Instead of the normal 8 hour day, employers and their workers have the ability to implement an “Alternative Workweek Schedule,” which, if done right, lets employees work more than 8 hours per day, without daily overtime, while putting in fewer days of work per week. 

Q: What is an Alternative Workweek Schedule?

A: An Alternative Workweek Schedule (or “AWS” in hip lawyer lingo) is a fancy term for a process allowing employers, with their employees’ permissions, to set work schedules that vary from the usual 8 hours per day, 5 days a week, without paying daily overtime. California Labor Code section 511 governs the requirements for implementing an AWS. 

Q: Why would I want to do this?

A: Short answer?  Happier employees. Employees like an AWS because it allows greater flexibility in their personal lives.  Many employees who are told they can finish their work week in four days by working two extra hours a day will pounce on the idea with unbridled enthusiasm. 

The other answer? A well-designed AWS can essentially eliminate the payment of overtime for those using it. Your finance guys will thank you.

Q: What are the possible work schedules?

A: Employers have many options to choose from. The most common are:  four days of work per week, for ten hours a day (aka a “4/10 ”); and what’s referred to as a  “9/80.” A 9/80 allows for nine days worked in a fourteen day calendar period, totaling eighty hours of work.

Q.  Can an employer implement an AWS for only those employees who want it, even if others don’t?

A:  Maybe. An AWS must be implemented for a “work unit,” but employers have the flexibility to define the unit as all employees in a division, department, job classification, or even physical location of work.  So long as the group of employees is recognizable and identifiable (and not made up to cheat the AWS system), it is likely a work unit.

Employers can also offer a “menu” of options. This offers employees a choice of different work schedules – for example, the employer may offer a choice of a 9/80 or a 4/10.  The employees can choose whichever option they wish. As a result, some employees in the work unit would work a 9/80 while others would work a 4/10, based on the menu option the employee chose.

Q: How do I do this?

A: Employers submit a written proposal to their employees in the affected work unit for an AWS. Then, after a meeting to discuss it, the employees vote in a secret ballot election. The ballot must pass by at least a two-thirds vote by all affected employees. Within thirty days after the results of the election are final, the employer must report the results to the California Division of Labor Statistics and Research, at the Department of Industrial Relations. 

Q: What are the potential pitfalls?

A: For starters, the procedures involved in implementing an AWS must be followed rigorously. There are timed deadlines for each step and these, along with the meetings with the employees and documents provided to them along the way, leave lots of room for mistakes. Even one small misstep could lead to invalidation of an AWS election from several years back. This can lead to serious legal and financial issues, such as having to pay back overtime. 

Also, employers may still have to make reasonable efforts to accommodate employees who aren’t as keen on the new schedule as their co-workers are. This could include:

  • any employee who was eligible to vote in the election but unable to work the adopted AWS;
  • any employee hired after the election but unable to work the new schedule; or
  • any employee whose religious beliefs or observances conflict with working the new schedule. 

This accommodation can include finding a work schedule that does not exceed eight hours in a work day.

Workplace Solutions: You’re probably asking yourself, should I implement an AWS?  The answer is: it depends (Figures. Lawyers!). Consider the following:  do I have employees for whom this system makes sense?  Will I get significant pushback from affected employees that vote against the ballot?  At the end of the day, will this lead to happier employees and a better bottom line?

These are among a few of the important considerations that employers must take into account.  Employers should discuss with counsel specific advantages and concerns an AWS can have on their business.