Employers often struggle to balance the need for expanded practice hours to accommodate patient schedules and the costs associated with nonexempt employee overtime.
In California, employers have the option to greatly reduce overtime costs by adopting an alternative workweek schedule. Because such a schedule can limit an employer’s ability to have flexible scheduling, it is best suited for employers who typically have regular working hours that rarely need to change.
What exactly is an alternative workweek schedule, and is it good news for employees and employers?
Labor Code section 511 and Wage Order 4 both provide regulations for alternative workweek schedules defined as “any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period.”
While an employer may desire an alternative workweek schedule, the schedule must be presented to and approved by employees in any identified “work unit” through a secret ballot election. A work unit is defined in the California wage orders to include all employees in a readily identifiable unit, such as a division, department, job classification, shift, separate physical location, or a recognized subdivision of any such unit. A work unit may consist of one employee as long as the requirements for an identifiable work unit are met. For example, a single front-office employee could be identified as a work unit.
Beyond reducing overtime costs, an alternative workweek schedule offers additional advantages: It increases practice owners’ ability to provide extended patient hours, extended employee pre- and post-patient prep time, flexibility for a four-day workweek, and reduced commute time for employees.
However, although an alternative workweek can reduce overtime costs, it should never be used solely to avoid paying overtime to employees.
Steps to implementing an alternative workweek
An employer cannot choose to implement an alternative workweek without prior consideration and approval by employees. The employer must follow a specific set of steps, described below, and failure to comply with even one requirement may invalidate the schedule and result in noncompliance with overtime wages:
- Provide written notice to all affected employees of the employer’s intent to adopt an alternative workweek schedule that is no more than 10 hours a day or 40 hours in a workweek.
- Conduct a vote only by secret ballot at the workplace.
- Disclose in writing and hold a meeting to discuss, at least 14 days prior to a vote, the effects of the alternative workweek on the employees’ wages, hours, and benefits.
- Get approval of the proposed alternative schedule by a two-thirds vote of the affected employees in the work unit.
- Notify the employees of the results of the vote.
- Send a written report to register the approved adopted schedule to the Department of Labor Standards Enforcement (DLSE) within 30 days of the results in order for the vote to be valid.
- Do not require the employees affected by the change to work the new hours for at least 30 days after the announcement of the final results.
- Maintain records of all schedule proposals, meeting communication, supporting information and documentation, and election results.
Pitfalls and best practices
Consistency is key when adopting an alternative workweek. The elected schedule must be supplied to employees consistently year over year for employers to avoid the risk of noncompliance with overtime law. If a practice does not consistently follow the submitted schedule, employees may be owed overtime.
If an employee is required to work fewer hours than they would normally be scheduled under an adopted alternative workweek schedule, the employer must pay overtime after eight hours in a workday. In turn, if an employee is provided the scheduled alternative workweek hours and chooses to clock out early, only straight time wages for time worked are owed, even if they surpass eight hours.
Here are best practices for being consistent:
- Plan carefully and retain excellent records.
- Follow all applicable meal- and rest break laws. Alternative workweek employees are generally entitled to the same meal and rest breaks as those on a traditional schedule.
- Reasonably accommodate an employee whose religious beliefs conflict with the schedule.
- Create a work schedule (up to eight hours per workday) to accommodate employees who are unable to work the alternative schedule.
- When hiring new employees, discuss the alternative workweek schedule prior to the onset of employment to ensure they understand the extended work hours. An employer is permitted but not required to provide a work schedule of up to eight hours per day to accommodate someone hired after the election who cannot work the alternative schedule.
- Periodically audit the practice schedule to ensure that the submitted alternative workweek schedule is provided to affected employees. If a new schedule is necessary, repeal by-election (described below) and hold a new election to adjust the alternative workweek schedule.
- Occasional changes to the schedule are acceptable with a reasonable one week’s notice.
Repealing the schedule
To repeal an alternative workweek schedule, an employer would typically go through the same steps identified above. If two-thirds of employees vote to reverse the alternative workweek schedule, an employer has 60 days to comply. Employers can also eliminate alternative workweek arrangements on their own as long as they provide reasonable prior notice to employees before ending the alternative workweek. Repeals or reversals cannot occur until at least 12 months after the original employee vote.
Checking schedule registration
Once the employer has registered their alternative workweek schedule with the DLSE, they can verify that their 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 DLSE pursuant to California Labor Code section 511(e).
Additional resources
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