2.3 Alternative Workweek Schedules (AWS) & Election Procedures

Alternative Workweek Schedules (AWS) & Election Procedures

Under California Labor Code Section 510, California is one of the few jurisdictions in the United States that enforces a strict daily overtime rule, mandating overtime compensation at time-and-a-half (1.5x) for any hours worked beyond 8 in a single workday, and double-time (2.0x) for hours worked beyond 12. To provide operational flexibility without forcing employers to incur daily overtime, Labor Code Section 511 and the IWC Wage Orders permit the adoption of an Alternative Workweek Schedule (AWS).

An AWS permits a regularly scheduled workweek under which non-exempt employees work up to 10 hours per day within a 40-hour workweek without the payment of daily overtime. However, California law treats an AWS as an extraordinary statutory exception. Employers must strictly comply with rigorous election, disclosure, and state filing procedures; any procedural defect renders the entire schedule void ab initio, triggering massive back-overtime liability.

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1. Recognized Alternative Workweek Models

While employers have discretion to propose varied scheduling structures, the three most common AWS arrangements in California are:

1. The 4/10 Schedule: Employees work four 10-hour days per workweek, receiving three scheduled days off. No daily overtime is owed for the 9th and 10th hours on scheduled workdays.
2. The 9/80 Schedule: Employees work 80 hours across a two-week cycle, typically four 9-hour days and one 8-hour day in Week 1, followed by four 9-hour days and one day off in Week 2.

   [!IMPORTANT] The Crucial 9/80 Workweek Divide: To avoid weekly overtime under Labor Code § 510, the statutory 168-hour workweek must begin and end exactly 4 hours into the 8-hour shift on the alternating working Friday (or day off). This splits the 8-hour shift into two 4-hour segments, allocating 40 straight-time hours into Week 1 (four 9-hr days + 4 hrs = 40) and 40 straight-time hours into Week 2 (4 hrs + four 9-hr days = 40). Failing to legally redefine the workweek boundary creates 44 hours of work in Week 1, triggering 4 hours of weekly overtime.

3. The 3/12 Healthcare Schedule: Under Wage Orders 4 and 5 (Section 3(B)(8)), health care industry employers are uniquely permitted to adopt an AWS with regularly scheduled shifts of up to 12 hours per day within a 40-hour workweek without daily overtime, provided the schedule is approved by a two-thirds secret ballot vote.

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2. The 5-Step Statutory Election Lifecycle

To lawfully establish an Alternative Workweek Schedule, an employer must execute every step of the statutory process outlined in Labor Code Section 511 and applicable IWC Wage Orders.

┌────────────────────────┐      ┌────────────────────────┐      ┌────────────────────────┐
│ Step 1: Define Unit    │ ---> │ Step 2: Written Plan   │ ---> │ Step 3: Meeting Notice │
│ Identifiable work unit │      │ Specific schedule, pay │      │ Informational meeting  │
│ (No individual units)  │      │ & benefits impact      │      │ held ≥14 days pre-vote │
└────────────────────────┘      └────────────────────────┘      └────────────────────────┘
                                                                            │
                                                                            ▼
┌────────────────────────┐      ┌────────────────────────┐      ┌────────────────────────┐
│ AWS Implementation     │ <--- │ Step 5: DIR/DLSR File  │ <--- │ Step 4: Secret Ballot  │
│ Takes effect ≥14 days  │      │ File certified results │      │ 2/3 of ALL eligible    │
│ after result announced │      │ with DLSR within 30 da │      │ employees in unit      │
└────────────────────────┘      └────────────────────────┘      └────────────────────────┘

Step 1: Define an Identifiable Work Unit

An AWS must apply to an "identifiable work unit" (Labor Code § 511(a)). Permissible units include:

• An entire division, department, or branch.
• A specific operational job classification (e.g., all forklift drivers, all clinical lab technicians).
• A distinct, existing shift or physical location.

[!CAUTION] Prohibition of Single-Employee Units: An employer cannot establish an AWS for an individual employee. California courts and the DLSE maintain that an AWS requires a collective employee unit. An individual written agreement between an employer and one worker to work 4/10s is legally void, exposing the employer to daily overtime liability after 8 hours.

Step 2: Comprehensive Written Disclosure

The employer must draft a detailed written disclosure statement describing the proposed schedule. The document must specify:

• The exact number of daily work hours and number of workdays per week.
• Whether the shifts will be fixed or rotating.
• The specific impact of the schedule on wages, hourly rates, and employee benefits (e.g., how holiday pay, paid sick leave, and vacation/PTO accruals will be calculated under 10-hour days).

Step 3: Mandatory Informational Pre-Vote Meeting

The employer must hold at least one informational meeting for all affected employees to explain the proposed schedule and answer questions.

• The meeting must be held at least 14 calendar days prior to the secret ballot vote.
• The written disclosure document must be provided to all affected employees at or before this meeting.
• Non-English translations must be provided if 10% or more of the unit speaks a language other than English.

Step 4: Secret Ballot Election

The election must be conducted by secret ballot at the worksite during regular working hours (or via secure mail/electronic ballot for remote or traveling staff). The employer must bear all costs.

• The Supermajority Threshold: To pass, the AWS must receive the affirmative vote of at least two-thirds (2/3) of all eligible employees in the work unit—not merely two-thirds of the votes cast!
• Example: If an identifiable work unit comprises 60 eligible employees, at least 40 employees must vote YES for the AWS to pass. If 45 employees turn out and vote (35 YES, 10 NO), the AWS fails, because 35 is less than two-thirds of the 60 eligible employees.

Step 5: DLSR Registration and Implementation Notice

Once approved, two final statutory deadlines apply:

1. Filing with the DLSR: The employer must certify and file the complete election results with the Division of Labor Statistics and Research (DLSR) within the Department of Industrial Relations within 30 calendar days of the election. This filing must include the name of the employer, the business address, the nature of the business, the work unit description, the final vote tally, and the agreed-upon schedule.
2. Mandatory 14-Day Notice Period: The employer cannot implement the new schedule until at least 14 calendar days after the election results are formally announced to the workforce. This provides employees necessary time to adjust personal child care, transportation, and family schedules.

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3. Overtime Pay Calculations Under an Approved AWS

Adopting an approved AWS modifies daily overtime thresholds, but does not eliminate overtime protections. The following statutory rules govern pay under a standard approved 4/10 AWS:

Overtime on Non-Scheduled Days (Days Off)

If an employee on an approved AWS works on one of their scheduled days off (e.g., working a 5th day in a 4/10 schedule):

• The first 8 hours worked on that non-scheduled day must be paid at 1.5x the employee's regular rate of pay, even if the employee has not yet reached 40 hours in the workweek.
• Any hours worked beyond 8 hours on that non-scheduled day must be paid at double-time (2.0x).

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4. Accommodation Obligations & Religious Protections

California law imposes strict accommodation obligations on employers utilizing an AWS:

1. Employees Unable to Work the Schedule: Under Labor Code § 511(e), the employer must make a reasonable effort to accommodate employees who were eligible to vote in the election and are unable to work the alternative schedule (e.g., exploring an alternative 8-hour assignment).
2. Religious Accommodation: Employers are required under the California Fair Employment and Housing Act (FEHA) and Labor Code § 511 to explore all reasonable accommodations for employees whose religious beliefs or observances conflict with the adopted schedule.
3. Anti-Retaliation: Employers are strictly barred from intimidating, coercing, or retaliating against any employee for voting against an AWS or requesting an accommodation.

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5. Repeal and Modification Procedures

An alternative workweek schedule is not permanent. Both employees and employers possess statutory avenues to repeal the arrangement:

Employee-Initiated Repeal

• Petition Threshold: A secret ballot vote to repeal an existing AWS must be held if at least one-third (1/3) of the affected employees in the work unit sign a petition requesting repeal.
• Election Timing: The employer must hold the secret ballot repeal election within 30 calendar days of receiving the petition.
• Passage Threshold: Repeal requires the affirmative vote of two-thirds (2/3) of all affected employees in the work unit.
• Transition Period: If repealed, the employer is granted 60 calendar days to revert the workforce back to a standard 8-hour workday schedule.

Employer Unilateral Termination

An employer may unilaterally terminate an AWS at its discretion by providing affected employees with at least 14 calendar days advance written notice of the schedule cancellation.

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6. Comprehensive Numerical Calculation Example

Comprehensive Overtime Scenario: Angela is a non-exempt clinical lab specialist working on an approved 4/10 AWS (scheduled Monday through Thursday, 10 hours/day) earning $30.00/hour. During a busy week, Angela works the following schedule:

• Monday: 10 hours
• Tuesday: 10 hours
• Wednesday: 13 hours
• Thursday: 10 hours
• Friday (Scheduled Day Off): 10 hours

Step-by-Step Pay Breakdown:

1. Monday, Tuesday, Thursday (Standard Scheduled Days):
   • 10 hours each day at straight time = 30 straight-time hours ($900.00).
2. Wednesday (13 hours on Scheduled Day):
   • Hours 1–10: Straight time (10 hrs × $30.00 = $300.00).
   • Hours 11–12 (Hours beyond AWS limit up to 12): 1.5x overtime (2 hrs × $45.00 = $90.00).
   • Hour 13 (Hours beyond 12 in a workday): 2.0x double time (1 hr × $60.00 = $60.00).
   • Wednesday Total: $450.00.
3. Friday (10 hours on Scheduled Day Off):
   • Hours 1–8 on non-scheduled day: 1.5x overtime (8 hrs × $45.00 = $360.00).
   • Hours 9–10 on non-scheduled day: 2.0x double time (2 hrs × $60.00 = $120.00).
   • Friday Total: $480.00.
4. Weekly Calculation Summary:
   • Straight-time hours: 40 hours ($1,200.00).
   • Overtime hours (1.5x): 10 hours ($450.00).
   • Double-time hours (2.0x): 3 hours ($180.00).
   • Total Gross Pay: $1,830.00.

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7. Major Employer Violations and Legal Pitfalls

                                ┌────────────────────────────────────────────────────────┐
                                │            Catastrophic AWS Legal Pitfalls             │
                                └───────────────────────────┬────────────────────────────┘
                                                            │
         ┌───────────────────────────────────┬──────────────┴────────────────────┬───────────────────────────────────┐
         ▼                                   ▼                                   ▼                                   ▼
┌───────────────────────────────┐ ┌───────────────────────────────┐ ┌───────────────────────────────┐ ┌───────────────────────────────┐
│      Failing to Register      │ │     Single-Employee AWS       │ │     Flawed 9/80 Boundary    │ │      Wrong Voter Pool       │
├───────────────────────────────┤ ├───────────────────────────────┤ ├───────────────────────────────┤ ├───────────────────────────────┤
│ Failing to file certified     │ │ Entering into an individual   │ │ Failing to divide workweek  │ │ Calculating 2/3 approval of   │
│ election results with DLSR    │ │ agreement with one employee   │ │ mid-shift on alternating    │ │ ballots cast rather than of   │
│ within 30 days. Agreement is  │ │ voids daily overtime waiver.  │ │ day off creates 44 hours    │ │ ALL eligible employees in the │
│ void retroactively!           │ │ Minimum unit is a group.      │ │ in Week 1 (4 hrs overtime). │ │ identifiable work unit.       │
└───────────────────────────────┘ └───────────────────────────────┘ └───────────────────────────────┘ └───────────────────────────────┘

[!CAUTION] The DLSR 30-Day Trap: An employer conducts a flawless election, secures 100% employee approval, but forgets to file the certified election results with the DLSR within 30 days. The AWS is legally void. The employer is liable for 2 hours of daily overtime pay for every 10-hour shift worked by every employee, retroactive for up to four years under the statute of limitations, along with Labor Code § 226 wage statement penalties and Labor Code § 203 waiting time penalties!