California Labor Code, section 511 (as amended in 2009) and most of the current Industrial Welfare Commission (IWC) orders provide for alternative workweek schedules. An alternative workweek schedule (AWS) means any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period. An alternative work schedule can be created for any readily identifiable work unit, such as a division, department, job classification, shift or separate physical location with the approval by secret ballot election of at least 2⁄3 of the affected employees in the work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit are met. See California Code of Regulations, Title 8, Section 11170.
The alternative workweek schedule may not require more than 10 hours of work per day or more than 40 hours of work in a workweek. However, there are differences within the IWC orders and among the industries covered by the specific orders both in the schedules that may be adopted and in the election procedures that are to be used. Any organization wishing to adopt or repeal an alternative workday/workweek schedule must follow the procedures set forth by the IWC and Labor Code, § 511.
Before an alternative work schedule is implemented, an organization must meet specific requirements in terms of proposing the schedule to the employee group, explaining the effects of the alternative workweek schedule and conducting a secret vote. That consists of the following, at a minimum:
- The organization must present a proposal, in the form of a written agreement, and designate a regularly scheduled alternative workweek. The proposal must specify the number of regular recurring workdays and work hours; the actual workdays do not need to be specified.
- The organization may propose a single work schedule that would become the standard schedule for workers in the work unit or a menu of work schedule options from which each employee in the unit could choose. If the organization proposes a menu of work schedule options, the employee may, with the approval of the organization, move from one menu option to another.
- For the alternative work schedule to be valid and recognized by the IWC, the proposed alternative workweek schedule must be adopted in a secret ballot election by at least a two-thirds vote of the affected employees in the work unit. The election must be held before the implementation of the alternative work schedule.
- Prior to the secret ballot vote, the organization must have held meeting(s) with the affected employees, a minimum of 14 days prior to the election, to discuss the effects of the proposed alternative work schedule on the employees’ wages, hours and benefits. A written disclosure detailing the information above must be included in the meetings. If at least 5% of the affected employees speak a language other than English, the disclosure must be provided in that language in addition to English. Organizations are required to mail the written disclosure to employees who do not attend the meeting(s).
- The election must be held at the worksite of the affected employees during regular working hours. (The organization must pay for all associated costs.) Election results must be reported by the organization to the Department of Labor Standards Enforcement within 30 days of finalizing the results. The report must include the final tally of the vote, the size of the unit and the nature of the business of the organization.
- Employees affected by a change in 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.
Furthermore, employers must conduct a very careful review of the provisions of both the IWC orders and the Labor Code sections to understand the alternative workweek rules. Not all IWC orders provide for alternative workweek arrangements. Alternative workweeks are provided for in Orders 1-13, 16 and 17.