Employers who institute an alternative workweek schedule (“AWS”) and require their employees to work more than eight hours in a day without paying them overtime are often in violation of the law if they did not follow the correct implementation requirements. If they did not observe the proper implementation requirements, then you and all of the other employees who were subject to the AWS may be entitled to back wages for the overtime pay you should have been receiving during the life of the AWS.
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SOME FAQ REGARDING AWS
1. What is an Alternative Workweek Schedule (“AWS”)?
In California, an alternative work schedule (“AWS”) is a different way to structure the workweek than the normal eight-hour day. California Labor Code Section 511 and most of the current Industrial Welfare Commission (“IWC”) orders provide for alternative workweek schedules. An alternative workweek schedule is any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period.
The AWS may not require more than 10 hours of work per day or more than 40 hours of work in a workweek without overtime pay. 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. Anyone wishing to adopt or repeal an alternative workday/workweek schedule must follow the procedures set forth by the IWC and Labor Code Section 511. In addition, there are special alternative workweek rules for certain health care workers.
2. Do I get overtime pay if I work an AWS?
Yes. An alternative workweek schedule should never be used as a way to avoid paying employees overtime. However, a properly implemented AWS will alter an employee’s rights to overtime pay. For example, under California law, employees working a properly implemented 4/10 AWS (four 10-hour days in a workweek) will not receive overtime pay for the hours worked between 8 and 10 hours in a day. That being said, employees working a 4/10 AWS should receive overtime pay at a rate of no less than 1.5 times their regular rate of pay for any hours worked in excess of 10 hours in a day and at twice the regular rate of pay for any hours worked in excess of 12.
Additionally, with some exceptions, if the employer requires an employee to work fewer hours than those that are regularly scheduled under the AWS (e.g., less than 10 hours in a day on a 4/10 AWS), then the employer must pay the employee overtime at the rate of one-and-one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours, and double the employee’s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours.
It bears noting that if the AWS was not properly implemented, then the AWS was not legal. In such circumstances, the employer owes the employees who were subject to the illegal AWS overtime pay for all the hours they worked in excess of 8 hours in a day. The employees can recover these unpaid overtime wages by a filing a lawsuit.
3. How does my employer implement an AWS?
For an AWS to be legal, an employer must meet specific requirements in terms of proposing the schedule to the employee group, explaining the effects of the alternative workweek schedule, conducting a secret vote, and reporting those results to the DLSE. Here are some of the steps the employer must take to properly implement an AWS:
- The employer 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 in the AWS.
- When the employer proposes an AWS, it can offer a single AWS or a menu of options. One of these options can be a standard schedule of 8-hour days.
- For the AWS to be valid and recognized by the IWC, the proposed AWS 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 AWS.
- Prior to the secret ballot vote, the employer 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 AWS 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. Employers are required to mail the written disclosure to employees who do not attend the meeting(s).
- Employers can advocate for or against an AWS, but cannot intimidate, discriminate, retaliate, or discharge employees over the election or the AWS.
- The election must be held at the worksite of the affected employees during regular working hours, and the employer must pay for all associated costs.
- Election results must be reported by the employer to the DLSE 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 employer.
- If the proposed alternative workweek schedule is adopted pursuant to the secret ballot election, the employer should give notice to the affected employees. The notice should state a specific date on which the alternative workweek schedule will be implemented. That implementation date must be at least 30 days after the final election results.
If the employer fails to do any of these steps, then the AWS is arguably illegal.
4. Can the employees repeal the AWS?
Yes, a group of employees affected by an AWS may repeal it. One-third of the affected employees may petition to repeal. However, a new secret ballot election must be held, and a two-thirds vote of the affected employees is required to reverse the AWS. If the AWS is revoked, the employer must comply within 60 days.
5. What can I do if my employer retaliates against me because I questioned him about the AWS?
If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you asked him if the AWS was properly implemented, you can file a discrimination/retaliation lawsuit in court against your employer.
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