Fill and Sign the Statement as to the Basis Wage Order 16 California Department of Form

Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 1 of 11 © James R. McDade 209 -667 -2300 INSTRUCTIONS FOR INSTITUTING AN ALTERNATIVE WORKWEEK SCHEDULE Note: Employers in California use those form as a general reference guide. Employers should consult their specific wage order to confirm the law that would apply to them. Employers should con sult legal counsel as needed . Quick -Look Chart of AWS Rules Please note: The summary below does not cover the special provisions applicable to the health care employees subject to Wage Order 4 (Professional / Technical), nor to those industries subject to Wage Order 5 (Public Housekeeping), nor some of the special election rules under Wage Order 16 (Construction). AWS is not allowed under Wage Order 14 (Agriculture) or Wage Order 15 (Household Occupations). Therefore, one should review the applicable W age Order for anomalies and not solely rely on the information in this summary . In general, t he following chart shows some of the differences between the various wage orders . An “x” means that the listed provision is in the wage order; a gray box means t hat the provision is not in the wage order. W AGE ORDER NUMBER PROVISION 1 - 3 4 & 5 6 - 8 9 & 10 11 - 13 14 & 15 16 AW S allowed [^AW S not allowed for public works contracts] X X X X X A W S N O T A L L O W E D X^ 10 hour day / 40 hour workweek lim it [*up to 12 for nurses] [**up to 12 for offshore oil and gas jobs] X X* X X X X** Overtime for hours worked over 10 on scheduled AW S day [* over 12 for nurses] [** over 12 for offshore oil and gas jobs] X X* X X X X** Double time for hours over 12 on s cheduled AW S day X X X X X X Overtime for 1 st 8 hours on normal day off X X X X X X Double time for hours over 8 on normal day off X X X X X X AW S shift must be at least 4 hours X X X X X Swapping of day off to accommodate employee’s request allow ed X X X X X Two consecutive days off required per week X X X Overtime required on day reduced schedule is worked X X X X X Regular pay cannot be reduced due to AW S election or repeal X X X X X X Must allow reasonable accommodation for religio us beliefs X X X X X X Must try to allow employees who participated in election but cannot work AW S to work 8 hours X X X X X X May allow employees hired after election who cannot work AW S to work 8 hours X X X X X X AW S starts 30 days after election results announced X X X X X X 8 hour schedule may be provided to employee hired after election who cannot work the AW S X X X X X X AW S election by secret ballot required X X X X X X Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 2 of 11 © James R. McDade 209 -667 -2300 2/3 required to elect AW S X X X X X X Single AW S schedule or men u may be proposed X X X X X X Employee may move from one menu to another with employer consent X X X X X X Election must be held during regular working hours at work site X X X X X X Ballots must be mailed to absent employees who worked within 30 day s X Pre -election written disclosure and notice of pre -election meeting must be given (and must be mailed to employees who do not attend the pre -election meeting) X X X X X X Pre -election meeting must be held 14 days prior to election X X X X X X Disclosure must be in native language if 5% of employees speak other language X X X X X X If employee complains, Labor Commissioner can assign third party to conduct election X X X X X X Election to repeal must be held if 1/3 of employees petition X X X X X X 2/3 of employees required to repeal AW S X X X X X X Election to repeal must be held within 30 days of petition to employer X X X X X X New election needed if number of employees increases by 50% X Results of election must be reported to DLSR within 30 days X X X X X X Number Wage Order Title ----------- ------------------------------------------------------------------------------------ 1. Manufacturing Industry 2. Personal Service Industry 3. Canning, Freezing and Preserving Indus try 4. Professional, Technical, Clerical, Mechanical Occupations 5. Public Housekeeping Industry 6. Laundry, Linen Supply, Dry Cleaning and Dyeing Industry 7. Mercantile Industry 8. Industries Handling Products After Harvest 9. Transportation Industry 10. Amusement and Recreation Industry 11. Broadcasting Industry 12. Motion Picture Industry 13. Industries Preparing Agricultural Products for Market, on the Farm 14. Agricultural Occupations 15. Household Occupations 16. Construction, Drilling, Logging and Mi ning Occupations 17. Miscellaneous Employee Occupations General Discussion of AWS Rules Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 3 of 11 © James R. McDade 209 -667 -2300 1. Proposal of Alternative Workweek Schedule Upon the proposal of an employer, the employees of any “readily identifiable work unit” (i.e., a division, department, job cl assification, shift, separate physical location) may adopt a regularly scheduled alternative workweek of no longer than 10 hours per day within a 40 -hour workweek without the payment of overtime. The work unit may consist of only one person. 2. Secret Ballot Required 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 work unit. The ballot does not have to be “secret” if the wor k unit consists of only one person. 3. Types of Schedules Authorized The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be either of the following: 1. A single work schedule that would become the standard sched ule for all workers in the work unit, including a schedule that changes the days to be worked from one week to another on a repeating pattern (ie., two week pattern of Monday through Thursday one week, and then Tuesday through Friday the next), or 2. A me nu of fixed work schedule options that will suit the employer’s business need so long as the proposal clearly provides a specified number of regularly recurring work days and the number of hours that will be worked each day. However, any alternative work week agreement adopted must provide for not less than four (4) hours of work in any shift. (Except for Wage Order 16 – Construction Occupations) Two consecutive days off must be given in an AWS adopted under Wage Orders 1, 2, 3, 6, 7, 8, 11, 12, and 13. When proposing an AWS, the Wage Orders do not require that the employer designate the exact days and exact times of day that the AWS will be worked. Thus, the proposal may simply provide that the employees will be electing a 4 day - 10 hour a day workwe ek. As discussed below, the employer can then change the days to be worked or the time of day to be worked, i.e., change from Monday through Thursday to Tuesday through Friday, or change from 6:00 a.m. through 5:00 p.m. (with one hour lunch) to 7:00 a.m. through 5:30 p.m. (with half hour for lunch). 4. Electing Schedules to Cover Hours of Operation Most employers will operate more than 4 days a week. Some operate 24 hours a day, seven days a week. So how do the employers propose schedules to ensure coverage during business hours if the employees can only work up to 10 hours day for up to 4 days a week? The answer is that employers can either propose a menu of schedules that cover the business hours, or, if it is impractical to allow the employees to choose among work schedule options even with the use of reasonable limitation on choosing (discussed below), then the employer may propose more than one alternative workweek schedule by dividing and designating the workforce into separate work units, and proposin g a different alternative workweek schedule for each designated unit. Note that Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 4 of 11 © James R. McDade 209 -667 -2300 it could happen that a work unit does not vote to have an alternative workweek schedule. So just don’t assume that designating separate work units is the way to go if there a re employees who would vote down the alternative workweek schedule. If the employer proposes a menu of work schedule options, the employees must be allowed to choose the schedule they want to work. However, the employer can impose reasonable nondiscrimina tory conditions on how the employees can choose from one schedule or another. For example, an employer can require that only a certain number of employees can work each shift, and those with the most seniority (or those chosen at random) can pick their sc hedules first until each schedule is full. Those employees choosing last may wind up having no choice in reality, but must be assigned to the one schedule that has open positions available. If fairness in having a certain day off is a concern, then it i s possible to have a reoccurring schedule that rotates from one week to the next. For example, the employer can have two groups that work two rotating schedules: Group X would work from Monday through Thursday one week, and then Tuesday through Friday th e next; and Group Y would work Tuesday through Friday and then Monday through Thursday. The employer would still have to use a nondiscriminatory criteria described above to sort each employee into either Group X or Group Y. Unless the employees are allowe d to freely choose the shift they will work, they would have to be advised of the fact that each shift is limited as to the number who may choose that shift and, further, be made aware of the nondiscriminatory method to be utilized in assigning the employe es to a particular shift. The employees must approve any limitations imposed upon an employee’s ability to choose an alternative schedule as part of the two -thirds vote of the work unit. Once the menu of schedules is instituted, the employee may, with the approval of the employer, move from one menu option to another. 5. Reasonable Accommodation An employer must make a reasonable effort to find a work schedule not to exceed eight hours in a workday in order to accommodate any affected employee who was eligibl e to vote in an election authorized and who is unable to work the alternative schedule hours established as the result of that election. [Comment: Our reading of this law is that the accommodation does not require that the employee be given 40 hours of w ork. In other words, if the employer’s operation under the alternative workweek schedule will consist of 4 days a week at 10 hours per day, then the accommodation may be the same 4 days a week but at 8 hours a day instead of 10.] An employer is permitted to provide a work schedule not to exceed eight hours in a workday to accommodate any employee who was hired after the date of the election and who is unable to work the alternative schedule established as the result of that election. An employer must explo re any available reasonable alternative means of accommodating the religious belief or observance of an affected employee that conflicts with an adopted alternative workweek schedule, in the manner provided by subdivision (j) of Section 12940 of the Govern ment Code. 6. Reporting of Results of Election Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 5 of 11 © James R. McDade 209 -667 -2300 The employer must report the results of any election to the Division of Labor Statistics and Research within 30 days after the results are final. The following information must be included in memo format to the Division of Labor Statistics and Research: A. The final tally of the vote. B. The size of the unit taking the vote. C. The nature of the business of the employer. The Election Results Memo (but not the actual ballots) should be sent to: Division of Labor Statistics and Research, Attention: Alternative Workweek Election Results, P. O. Box 420603, San Francisco, CA 94142 -0603. 7. Overtime Under Labor Code §511, overtime must be paid for 1. any work in excess of the regularly scheduled hours established by the AWS agreement for up to 12 hours per day, and 2. for any work in excess of 40 hours per week. Double time must be paid for 1. any work in excess of 12 hours per day on any day, and 2. for any work in excess of eight hours on those days worked beyond the regularly scheduled workdays established by the alternative workweek agreement. An employer is not required to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work . Please refer to the chart below which lists when and at what rate overtime must be paid when an employee works outside the alternative workweek. Overtime may occur on an occasional basis. Overtime should not be regularly scheduled as part of the altern ative workweek. Because an alternative workweek may not exceed 10 hours in a day, any regular schedule of more than 10 hours in a day (or more than 40 hours in a week) would, by definition, not be an alternative workweek. If the schedule would not qualif y as an alternative workweek, then all hours worked over 8 in a day and 40 in a week would be subject to overtime. 8. Make -up Time It appears that the rules for make -up time under Labor Code §513 do not apply to employees who are on an AWS. Instead, the empl oyer is permitted, but is not required, to allow an employee to substitute a day off for a whole workday on occasion to meet the personal needs of the employee without the payment of overtime. Employees cannot substitute part of a workday and make up the time on another workday or on a day off. The employee must substitute a whole workday for a day off. Wage Order 16, however, does not contain language allowing for any type of substitution of workdays for days off. 9. Incomplete Shifts Sometimes employers r un out of work for the employees to do on particular day or during part of a workweek. The question then arises whether the employer can send the Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 6 of 11 © James R. McDade 209 -667 -2300 employees home early on a particular day or tell the employee not to report for work at all. Wage Orders 4 an d 5 provide that if an employer requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation all hours worked in excess of eight (8) hours for the day the emplo yee is required to work the reduced hours. For example, if the AWS provides that the employee is to work 10 hours on a particular day, but the employee is sent home after working only 9 hours, then the employer must pay one hour of overtime. If the AWS p rovides for 10 hours on a particular day, but the employee is sent home after working only 8 (or less), then there is no penalty. For all other Wage Orders besides 4 and 5 , no overtime need be paid if the employee is sent home early on occasion. The same rules would apply if the employee were told not to report for work at all on occasion. However, if the employee is sent home early on a regular basis (or told not to report for work on a reoccurring basis), then the whole AWS can be nullified because the employer may be found to have unilaterally revoked the old AWS schedule, and unilaterally instituted a new AWS schedule. An employer who runs out of work for an employee can allow employees to voluntarily go home early without completing or being paid fo r the rest of their regular shift in order to avoid nullifying an AWS. To do so, the employer should issue a written policy to employees stating that they can work a complete shift if they desire or, alternatively, to go home early without being paid for the rest of their shift. If the employee chooses to stay at work, then the employer must either pay the employees for standing around until the shift is over or provide the employees with odd jobs for the remainder of the shift. The wage rate for not wor king or for working the odd jobs can be as low as minimum wage. But again, the employer should specify in a written policy that a different pay rate will apply to certain kinds of work, including “stand around” time. (It will not be effective to simply s tate that all work performed after a certain hour, regardless of its nature, will be at a lower rate.) Employees must then record when they change from one kind of work to another so the proper pay rate can be applied. The same rules apply, even if the employer wants to close early for a holiday. 10. Changes in the AWS Schedules For Convenience of Employer . Remember that when the AWS is being instituted, the employee is voting for a certain number of workdays with a certain number of hours per day. The em ployer can change, for the employer’s benefit, the AWS schedule on occasion (meaning once every 4 months) with advance notice (meaning at least one week’s prior notice). The employer is only permitted to change the exact days worked and the times of the d ay worked, but not the number of days worked or the hours per day worked. So if the employees elected a 10 -hour -a-day, four -day -a-week, workweek, then the employer cannot change the schedule to 9 hours a day for 4 days or some other combination of hours a nd days that is not 10 hours a day for 4 days. (See Enforcement Manual §56.23.1) Swapping Single Day Upon Request of Employee . Employers cannot force employees to swap days off. But m ost of t he Wage Orders specifically state that, at the request of the employee, the employer may (but is not required) to substitute one day of work for another day of the same length in the shift provided by the alternative workweek agreement on an occasional basis to meet the personal needs of the employee without Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 7 of 11 © James R. McDade 209 -667 -2300 the pay ment of overtime. While the word “occasional” is not defined in the Wage Orders nor in the applicable section of the DLSE Enforcement Manual, we can assume that it will have the same meaning as defined for changes by employers above, namely one change eve ry 4 months. (See Wage Orders, and Enforcement Manual §56.23.9) Note that Wage Orders 14, 15, and 16 do not have this specific language in them allowing for a swap. If the employee is swapping a day off by working an extra day one week for someone else s o that the employee works 5 days in one week, then there could be overtime on that 5 th day. To be safe, the employees need to swap days off in the same workweek so they each work 4 days, but have a different day off. Lay Offs . The above rules regarding changing the AWS will not prevent an employer from laying off employees altogether during slow periods for fear the AWS would be nullified. Those employees not laid off would work the AWS. The employees who were laid off would then qualify for unemployme nt benefits. When the employees who were laid off are brought back the work, the AWS would still be in place. Repeating Schedules . It is possible to have a repeating schedule of different workdays as the AWS. The change in workdays in a repeating sched ule is not a change in the AWS itself. So, for example, a repeating schedule that is not a “change” is one where the employees work Monday, Tuesday, Wednesday, and Thursday for the first 3 weeks of the month, and then one person is assigned to work Monday , Tuesday, Wednesday, and Saturday on the 4 th Saturday of the month. The next month a new person is assigned to work the Saturday. This type of repeating schedule needs to be laid out several months in advance so the employees know what their schedules a re going to be. 11. Holidays How much does the employer have to pay an employee who is on the AWS for a holiday: 8 hours or 10 hours? The answer is that the employer can pay the employee anything that the employer desires, so long as the employee knows in ad vance what that will be. If the employer needs to control labor costs when a holiday falls on a day that the employee is normally off on the AWS, then the employee could be given another day off with pay that the employee must take in lieu of a regular wo rkday. The following is an example: Scenario For A Monday Holiday, When Monday Is Normally A Workday Sun Mon – Holiday Tue Wed Thu Fri Sat Normal Schedule Normal Day Off 10 10 10 10 Normal Day Off Normal Day Off Holiday Schedule Normal Day Off Day of f with pay for Holiday 10 10 10 Normal Day Off Normal Day Off Scenario For A Monday Holiday, When Monday Is Normally A Day Off Sun Mon - Holiday Tue Wed Thu Fri Sat Normal Schedule Normal Day Off Normal Day Off 10 10 10 10 Normal Day Off Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 8 of 11 © James R. McDade 209 -667 -2300 Holiday Sche dule Normal Day Off Normal Day Off Day off with pay for Monday Holiday 10 10 10 Normal Day Off But what the employer cannot do is force the employee to change days off and work on a normally scheduled day off to make up for the holiday. The following is an example: Scenario For What An Employer Cannot Do Sun Mon - Holiday Tue Wed Thu Fri Sat Normal Schedule Normal Day Off 10 10 10 10 Normal Day Off Normal Day Off Holiday Schedule Normal Day Off Day off for Monday Holiday 10 10 10 Normal Day Off *An e mployee can at his or her own request for his or her own personal reasons, and with permission of the employer, change the day off from Friday to Monday; but an employer cannot force the employee to work on Friday without payi ng overtime according to the chart below. 12. Vacation Accrual Vacations policies can be written so that the employee on an AWS knows that a “week’s” worth of vacation means 40 hours, not 5 days at 10 hours per day. For ex ample, an employer can give employees the following policy: If an employee on an AWS earns a week’s worth of vacation, he or she earns the same number of hours of vacation as any other employee with the same number of years of service. Employees who work an AWS and who do not work a full ye ar earn a prorated amount of vacation based on the follow example: If an employee who works an AWS could earn 40 hours of vacation in a year, then that employee earns .20833 hours of vacation for each day worked (i.e., 40 hours vacation divided by 12 mont hs, divided by 4 weeks, divided by 40 hours, multiplied by 10 hours) up to .8333 hours of vacation per week (i.e., the per day accrual rate multiplied by 4 days). So if the employee works 5 or more days in a week on occasion, the employee will only earn o ne week’s worth of vacation (i.e., .8333 hours). 13. No Reduction in Pay An employer shall not reduce an employee's regular rate of hourly pay as a result of the adoption, repeal or nullification of an alternative workweek schedule. 14. Regulations Governing Elec tions and Repeals of AWS A. Provide Disclosure Statement and Proposed AWS Agreement Provide each employee of the work unit with (1) a written disclosure statement which discusses the proposal to institute an alternative workweek schedule, and (2) the propo sed written alternative workweek agreement. The Disclosure Statement must include the effects of the proposed schedule on the employees' wages, hours, and benefits. The disclosure must also include notice of a meeting scheduled for the specific purpose of discussing the effects of 10 Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 9 of 11 © James R. McDade 209 -667 -2300 an alternative workweek schedule to be held at least 14 days prior to voting. An employer shall provide that disclosure in a non -English language, as well as in English, if at least five (5) percent of the affected employees pri marily speak that non -English language. The proposed written Alternative Workweek Agreement must designate a regularly scheduled alternative workweek in which the specified number of workdays and work hours are regularly recurring. The employer need not s pecify the actual days to be worked within that workweek prior to that alternative workweek election. However, the term "regularly scheduled" as set forth in Labor Code § 511(a), means that the employer must schedule the actual work days and the starting and ending time of the shift in advance, providing the employees with reasonable notice of any changes; wherein said changes, if occasional, shall not result in a loss of the overtime exemption. The employer may propose a single work schedule that would b ecome 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. B. Hold a Meeting A noticed meeting must be held with all affected employees at least 14 days pr ior to voting for the specific purpose of discussing the effects of the alternative workweek schedule. C. Conduct a Secret Ballot Conduct a secret ballot at least 14 days after the disclosure meeting is held. The election must be held during regular worki ng hours at the employees’ work site and at the employer’s expense. If the work unit consists of only one person, then the ballot does not have to be secret. D. Enter into Written Agreement If at least 2/3 of the employees elect an alternative workweek sc hedule, then enter into a written agreement consenting to an alternative workweek schedule, which must be voluntarily executed by the employer and by at least 2/3 of the employees in the affected work unit. The agreement should also disclose the right of an employee to request that the employer consider granting an accommodation from the alternative workweek schedule, and also the employee’s right to request a vote to revoke the alternative workweek schedule. E. Announce and Implement AWS Employees affect ed 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 thirty (30) days after the announcement of the final results of the election. F. Report Results Repor t the results of the election to the Division of Labor Statistics and Research within 30 days after the results are final. G. Petition for Revocation Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 10 of 11 © James R. McDade 209 -667 -2300 After a lapse of 12 months, and upon petition of 1/3 of the affected employees, the employees may vote by secret ballot to revoke the alternative workweek schedule. The election to revoke the AWS must be held within 30 days of the petition to revoke. The alternative workweek schedule shall be revoked if 2/3 of the affected employees so vote. If the agreemen t is revoked, the employer shall comply within 60 days, unless the employer requests, and the Labor Commissioner grants, special permission to delay compliance because of undue hardship. All elections must be held during regular working hours at the emplo yees’ work site and at the employer’s expense. H. AWS Overtime Chart An AWS Overtime Chart is set forth on the next page . This chart shows an example of when overtime must be paid for work done outside a sample AWS schedule. Instructions for Instituting Alternative W ork Schedules (Rev 0 5-17-05) Page 11 of 11 © James R. McDade 209 -667 -2300 OVERTIME IN ALTERNATIVE WORKW EEK SCHEDULES This chart represents the overtime obligations which exist assuming the alternative workweek schedule is as marked with the initials “AWS” and the employee works all the hours in the alternative workweek schedule. Hours Worked Monday Tuesday Wednesday Thursday Friday Saturday Sunday 14 Dble -work over 12 Dble -work over 12 Dble -work over 12 Dble -work over 12 Dble -work over 12 Dble -work over 12 Dble -work over 12 13 Dble -work over 12 Dble -work over 12 Dble -work over 12 Dble -work over 12 Dble -wo rk over 12 Dble -work over 12 Dble -work over 12 12 OT -work outside AWS OT -work outside AWS OT -work outside AWS OT -work outside AWS OT -work outside AWS Dble - work over 8 hrs on a non -RSW Dble -work over 8 on a non -RSW 11 OT -work outside AWS OT -work outside AWS OT -work outside AWS OT -work outside AWS OT -work outside AWS Dble - work over 8 hrs on a non -RSW Dble -work over 8 on a non -RSW 10 AWS AWS OT -work outside AWS OT -work outside AWS OT -work outside AWS Dble - work over 8 hrs on a non -RSW Dble -work over 8 on a non -RSW 9 AWS AWS OT -work outside AWS OT -work outside AWS OT -work outside AWS Dble - work over 8 hrs on a non -RSW Dble -work over 8 on a non -RSW 8 AWS AWS OT - work outside AWS AWS AWS OT -work outside AWS OT -work outside AWS 7 AWS AWS OT - work outs ide AWS AWS AWS OT -work outside AWS OT -work outside AWS 6 AWS AWS OT - work outside AWS AWS AWS OT -work outside AWS OT -work outside AWS 5 AWS AWS AWS AWS AWS OT -work outside AWS OT -work outside AWS 4 AWS AWS AWS AWS AWS OT -work outside AWS OT -work outsi de AWS 3 AWS AWS AWS AWS AWS OT -work outside AWS OT -work outside AWS 2 AWS AWS AWS AWS AWS OT -work outside AWS OT -work outside AWS 1 AWS AWS AWS AWS AWS OT -work outside AWS OT -work outside AWS “AWS” = Alternative Workweek Schedule “OT” = Regular Overt ime “Dble” = Double Time “RSW” = Regular Scheduled Workday Please note that an AWS must have at least 4 hours in a day . Please note that two consecutive days off must be given in an AWS adopted under Wage Orders 1, 2, 3, 6, 7, 8, 11, 12, and 13 .