For those unfamiliar with the concept, an alternative workweek schedule ("AWS") provides a narrow exception to California's onerous daily overtime law.  With a properly enacted AWS, overtime eligible employees may be asked to work more than eight hours per day under certain circumstances, without the business incurring any overtime liability.  This can bring substantial savings to a company. It's also good for employees who wish to cut commute times and want more flexible work arrangements.

Existing law had severe limits on the structure of such programs.  Although most of those rules remain intact, the new law allows employers and employees several areas of flexibility in how to manage an AWS arrangement.

Under the current law, an employer may implement an AWS where two-thirds of the affected employees in an "identifiable work unit" vote in a secret ballot election to implement the AWS.  This procedure has not changed.

An alternative workweek can consist of either a single, fixed weekly schedule (such as a "four-ten" schedule where an employee works ten hours per day, four days per week) or a menu of work schedule options from which the voting employees may choose.

The present law contains a quirk which has precluded many businesses from enacting an AWS.  Existing law does not permit employers to offer a traditional eight hour day as one of the AWS options for employees to vote upon.  This has made it difficult to institute an AWS where many of the affected employees cannot work more than eight hours a day indefinitely.  The new law corrects this problem by permitting an employer to include the traditional eight hour schedule within the menu of AWS options that employees vote upon.

Existing law also didn't allow employers to switch very easily among the menu of schedule options approved by the employees when they vote on the AWS.  Under the new law, with employer consent, employees may move from one schedule option to another on a weekly basis.

The current AWS statute omits a definition which constitutes an "affected work unit" for voting purposes.  The new law adds a definition to clarify who gets to vote on the AWS.  It defines a work unit for voting purposes as "a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof."  Significantly, a work unit may even consist of an individual employee who qualifies as an identifiable work unit.

Employees benefit from an AWS because it offers options that help them balance their work responsibilities with their personal responsibilities without taking time off from work.  It is beneficial to employers because the flexibility can help retain good staff while reducing absenteeism and increasing productivity.  But, the rules regarding implementation and maintenance of an AWS are complicated and must be followed to the letter. If not, the employer could find itself with a huge bill for unpaid overtime years later. Therefore, it is highly recommended that you consult legal counsel to ensure that your plan is fully compliant.

If you are interested in learning more about alternative workweek schedules and these recent changes, your contact at the Firm is ready to assist you if you have any questions.