A California employer through their HR department may have a desire to institute a new 4/10 policy–instead of working the traditional 8 hours for 5 days a week, work 10 hours for 4 days a week. In total, the hours will not exceed 40 hours per week. Here are the guidelines.
Can you pick the days?
The first question is whether the employer is locked into a specific weekly schedule. For example, only allowing Monday, Tuesday, Wednesday and Thursday. Could there also be another variant, such as Tuesday, Wednesday, Thursday, and Friday? The answer is yes. In fact, as seen below, the employer can offer a “menu” of options. Two of those options could be as stated above.
Law:
California Labor Code Section 511(a) provides in relevant part:
“Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant to this section. A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be 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 would be entitled to choose.”
In turn, a work unit is defined as follows
“(i) For purposes of this section, “work unit” includes a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this section is met.”
Thus, the requirements are as follows:
- This must be regularly scheduled by the HR department. In other words, the employees in the unit must have this schedule on a regular or ongoing basis. You cannot be sporadic.
- You must create a special unit or department.
- All employees of the unit or department will be subject to these rules.
- The employer should start by preparing a written notice of the intent to adopt the alternative workweek schedule. This should detail the new schedule. If 5% of the affected employees primarily speak a language other than English, the notice must be in that language as well. The Notice should also talk about how the arrangement might affect their wages and benefits. Presumably there will be no change therein because it is still a 40 hour workweek.
- You can propose a single alternative schedule or a “menu” of different options. Each employee can choose whatever menu they wish. And the employees may switch between the different schedules without putting it to an additional vote.
- Employees must vote and agree upon the schedule by secret ballot. Two thirds of the affected employees must vote in favor of the arrangement. The election is at the company’s expense and during regular working hours.
- All the employees shall continue to receive their regular rate of hourly pay.
- Overtime shall be payable only if the hours exceed the alternative work schedule, namely more than 40 hours per week.
- Your HR representatives must report the election results to the California DLSE within 30 days.
- If these procedures are not followed, the election is invalidated and the employer may be required to pay overtime after eight hours per day. HR consultants therefore caution their employers to be careful with this compliance.
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