Flexible Workplace Options for Employers

As more employees return to the workplace, employers are searching for ways to retain existing employees and attract new talent in a changing landscape where remote work and shorter workweeks are becoming more common. This article looks at two options for employers who are seeking to give employees greater flexibility in their schedules and how to remain compliant with California labor laws in the process.

Alternative Workweek Schedule

One option for employers is to implement an alternative workweek schedule (“AWS”), which provides greater flexibility by allowing employees to work longer shifts on less workdays. The AWS also permits non-exempt employees to work more than 8 hours in a day without incurring daily overtime. The most common AWS is the 4/10, where employees work 4 days a week for 10 hours each day.

Under an AWS, no overtime is required for a regular schedule of not more than 10 hours per workday within a 40-hour workweek. If employees work longer than 10 hours a day on an AWS, they are entitled to overtime pay at one-and-one-half times their regular rate of pay for all time worked between 10 and 12 hours, and double their regular rate of pay for any hours worked over 12 hours. Additionally, employees are entitled to overtime for all hours worked on any day that is not included in the AWS at one-and-one-half times their regular rate for the first 8 hours and double their regular rate of pay for any hours worked over 8 hours.

An AWS can be used for an entire company, or any identifiable “work unit” including a department, a shift, or a particular location. The AWS must be approved by a secret ballot election of at least two-thirds of the affected employees in the work unit. Employers can propose one schedule for all employees in the work unit or provide a menu of schedule options that each employee can choose from.

Once the work unit and AWS is determined, employers should follow the steps below to implement the AWS.

  1. Notice. Send a notice to all employees in the work unit regarding the proposed schedule change and describe how the change will affect their hours, wages, and benefits.
  2. Pre-Election Meeting and Disclosure. Employers are required to hold a pre-election meeting at least 14 days before the secret ballot election to discuss the proposed alternative workweek schedule. Employers must also provide all employees with a written disclosure that includes the information discussed at the meeting. If at least 5% of the employees in the work unit speak a language other than English, employers must provide the disclosure in that language as well.
  3. Secret Ballot Election. Hold the election at the worksite during regular work hours. If some employees in the work unit are not present for the election, they can provide an absentee ballot upon their return.
  4. Notify DLSE. If the AWS is approved by the employees in the work unit, the election results must be mailed to the Department of Industrial Relations. Employers should follow the instructions on the DLSE website regarding where to send the notice and what information to include: https://www.dir.ca.gov/databases/oprl/dlsr-awe.html.
  5. Implement Schedule: Employers may not require employees to work the new AWS for at least 30 days after the final results of the election.

Employers must also make reasonable efforts to accommodate a schedule with 8-hour work days for employees who voted in the election but are unable to work the AWS, employees who have a religious belief or observance that conflict with the AWS, and employees who are hired after the date of the election and are unable to work the AWS.

Hybrid Work Schedule

While remote work has gained popularity amongst employees and employers, for many companies it is necessary to have employees physically present in the workplace. One option for employers is to create a hybrid remote work schedule that allows employees to work remotely part of the time. Employers can require a certain number of days at the workplace each week, or create set schedules designating the specific days of the week on which employees will work remotely.

Employers should have a written policy in place that describes which employees or groups of employees are eligible for remote work, how to request a remote work schedule and who needs to approve it, and the expectations for employees when working remotely.

If remote work is provided as a purely voluntary option for the benefit of the employee, and it is not a requirement of their job, employers are not obligated to reimburse employees for expenses incurred in working remotely.

We recommend working with counsel to implement either an AWS or a remote work policy to ensure compliance with all California labor laws.

If you have any questions about this or any other employment related matters, please contact Marissa Buck or any member of DP&F’s Employment Law team.