WORKPLACE LAW – Accommodating Employer

Question:

One of my non-exempt employees has asked me if he can work a 40-hour week schedule, but working ten hours a day, four days a week. I do my best to accommodate my employees’ personal schedules, but I do not think I should have to pay him the two hours a day in overtime, especially since he will only be working four days a week. He has agreed to waive overtime for those additional two hours a day, and I am preparing a written agreement to that effect for the employee to sign. Would that agreement be enforceable?

Answer:

An agreement by an employee to waive overtime would be void under both state and federal law unless an overtime pay exemption applied to his or her position. Therefore, even if an employee signs an agreement waiving overtime, he or she could later bring a civil lawsuit against the employer for overtime amounts owed, plus interest on those amounts, attorneys’ fees, and the costs the employee incurred in bringing the lawsuit.

The Labor Code does make provisions for “alternative workweek schedules” so that an employer can allow non-exempt employees to work more than eight hours per day without requiring the payment of daily overtime, but it is a rather involved process involving a secret ballot election. An “alternative workweek” is any regularly scheduled workweek in which an employee is required to work more than eight hours in a 24-hour period. Although a four-day workweek of 10 hours per day is the typical alternative workweek schedule, various other combinations can be created.

If you would like to accommodate your employee’s request, you must first present a written proposal for an alternative workweek schedule to that employee and all others in his or her “work unit.” A “work unit” can be a division, department, job classification, shift, separate physical location, or recognized subdivision of any such work unit, and it can consist of just one individual if only one person works in that “work unit.” The employer can propose a single work schedule that would be the standard schedule for all workers in the work unit, or a menu of work schedule options from which each employee in the work unit could choose. The proposed schedule cannot require that employees work more than 10 hours per day within a 40-hour workweek, or provide for less than four hours of work in any shift.

The employer must disclose in writing to the employees the effects of the proposed schedule on their wages, hours and benefits. If at least five percent of the affected employees primarily speak a non-English language, the written disclosure must be in English and in the non-English language. In addition to the written disclosure, the employer must have at least one meeting with the employees fourteen days before the election to discuss with them the effects of the alternative workweek schedule.

Once the above requirements have been met, the secret ballot election may be held, but no earlier than fourteen days after the employer’s meeting with the employees discussing the effects of the schedule with them. The employer must pay for all expenses of the secret ballot election. For the proposed alternative workweek schedule to be adopted, two-thirds of the employees in the work unit must vote in favor of it. The employer must then file the results of the election with the Division of Labor Statistics and Research within 30 days after the election results are final. Employees cannot be required to work the alternative workweek schedule for at least 30 days after the final election results are announced.

The above only deals in a summary fashion with the manner in which the alternative workweek schedule is proposed and voted on and does not address procedures to be followed once the schedule is in place. Any employer wishing to propose an alternative workweek schedule should consult with an attorney to ensure that all of the Labor Code requirements are met in order to avoid future claims by employees for overtime. It should also be noted that employees on public works and in agricultural occupations under Wage Order 14 cannot work alternative workweek schedules.
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