My hourly employee asked for a flexible schedule where she would work four 10-hour days instead of five eight-hour days due to child care issues. Do we have to pay any overtime if we agree with the employee’s request?
Among the numerous disruptions the pandemic has caused to society at-large, and specifically within the employment relationship, is the difficulty with maintaining traditional work schedules.
Child care and schooling often create strain on the regular five-day-a-week, eight-hour workday schedule. Further, we have discovered that flexibility often can be a benefit to both employers and employees.
Wage-and-hour laws, however, still have not caught up to the 21st century or new realities created by the pandemic. Even with a mutual agreement between the employer and the hourly, nonexempt employee, employers would have to pay two hours of overtime each day on a four-day, 10-hour workweek unless the employer satisfies the legal requirements for the creation of an alternate workweek schedule.
Creating Alternate Schedule
To avoid overtime issues created by a work schedule that exceeds eight hours in a day, an employer must follow a rigorous, step-by-step process to create the alternative workweek schedule.
An employer must first identify the work unit to which the alternative workweek will apply. Although the work unit can be fairly broad, such as a division, department, job classification or specific physical location, the work unit must encompass the whole unit, not just select individuals within the unit. The work unit can even be just one employee if that employee is the only person in that division, department, classification or location.
Once the work unit is established, the employee must determine what alternative schedule or schedules to propose. The employer must designate the regularly scheduled number of workdays and hours within the workday, but does not have to specify the actual days in the week. Some examples include four 10-hour days, or four nine-hour days plus a four-hour day.
With the proposed schedule settled, the employer must provide a written disclosure to all affected employees in the defined work unit of the schedule as well as the effect on the employees’ wages, hours and benefits. The employer also must hold at least one meeting at least 14 days prior to scheduling an employee vote on the schedule to discuss the schedule and effects on wages, hours and benefits. If some affected employees cannot attend the first meeting, the employer may need to hold further meetings.
With disclosures and meetings complete, the employer hosts a secret ballot election. A two-thirds vote of all affected employees is required to adopt the schedule. This means that if nine employees are affected, there must be at least six votes in support of the schedule. Employees are not required to vote, and a nonvote is treated just like a “no” vote.
If the new alternative workweek schedule is adopted, the employer must report it to the Labor Commissioner’s office.
Once the alternative workweek schedule is established, an employer needs to continue to ensure the schedule remains valid. The Labor Commissioner can invalidate an existing schedule for a number of reasons, such as:
- The employer did not pay overtime properly for hours worked in excess of the schedule;
- Employees are no longer in the affected work unit but are still working the schedule;
- Employees consistently work outside the set schedule; or
- The schedule was changed without following the above procedures for creating an alternative workweek schedule.
If the schedule is invalidated, all hours worked in excess of eight in a day will be subject to overtime. An employer also may unilaterally repeal an alternative workweek or employees may choose to repeal the schedule if at least one-third of the affected employees petition to repeal the schedule and two-thirds of the affected employees vote to repeal the schedule in a secret ballot election.