• Alternative Workweek Checklist

To learn about special rules that apply only to the health care industry, see “Alternative Workweek Schedules and Health Care” in Exceptions to the Alternative Workweek.

This page contains the following information:

• Determine the Affected Work Unit
• Propose an Alternative Schedule
• Determine the Maximum and Minimum Hours Allowable
• Distribute a Written Disclosure
• Hold at Least One Meeting
• Hold a Secret Ballot Election
• Submit Results of the Election
• Retain Complete Records

Determine the Affected Work Unit

Alternative workweek schedules are not meant for a handful of employees within a department who want flexibility. With limited exceptions, all nonexempt employees in a particular work unit must work the alternative workweek schedule.

The first step in adopting an alternative workweek is to define the work unit, which may be a:2

• Division
• Department
• Job classification
• Shift
• Separate physical location
• Recognized subdivision of any work unit

For example, a work unit might be the entire company, or a single division/department within the company (such as the warehouse workers), or just one shift within that department (such as only the graveyard shift in the warehouse). A work unit might also be one physical location within that department (such as the warehouse workers in the Los Angeles location but not the warehouse workers in the San Francisco location).

A work unit may even consist of an individual employee if they are the only person in the division, department, job classification, shift, separate physical location or recognized subdivision of any work unit.

In Wage Order 16 (Certain On-Site Occupations in the Construction, Drilling, Logging and Mining Industries) the term “work unit” only includes “all nonexempt employees of a single employer within a given craft who share a common worksite.” Thus, all carpenters employed by a single employer, but at more than one (or multiple) worksites, may not be eligible to vote on an alternative workweek arrangement.

Propose an Alternative Schedule

You must present a written proposal for an alternative workweek schedule to employees in the affected work unit. Employees cannot create an alternative workweek without your proposal or approval.

The proposed agreement must designate a regularly scheduled alternative workweek in which the specified number of workdays and work hours regularly repeat. You need not specify the actual days to be worked within that alternative workweek schedule.

The schedule must provide no fewer than two consecutive days off within each workweek, except for employees working an alternative workweek in Wage Order 4, Professional, Technical, Clerical, Mechanical and Similar Occupations; Wage Order 5, Public Housekeeping Industry; Wage Order 9, Transportation Industry; Wage Order 10, Amusement and Recreation Industry; Wage Order 15, Household Occupation; and Wage Order 16, Certain On-Site Occupations in the Construction, Drilling, Logging and Mining Industries.3

Propose a Single Schedule or a Menu

You can propose a single work schedule that would become the standard schedule for all employees in the work unit. You can also propose a menu of work schedule options from which each employee in the work unit could choose, as long as the proposal clearly provides a specified number of regularly recurring work days and the number of hours in the work shift.

The proposal need not designate the starting and ending time of the shifts that will be available during the alternative workweek. For an example of an alternative workweek schedule, see the Alternative Workweek Sample Calendar .

• Alternative Workweek Sample Calendar

The following are examples of acceptable regularly scheduled alternative workweeks:

• A workweek in which employees work three 12-hour shifts and one four-hour shift — also known as 3/12 and 1/4 workweek.
• A workweek in which employees work four 10-hour shifts, also known as a 4/10 workweek.4
• A workweek beginning at noon Friday and ending at noon the following Friday. Employees will work four nine-hour shifts and one four-hour shift each workweek.

The proposed menus of work options may also be a regular schedule of eight-hour days that are compensated outside the scope of the alternative week. Further, with your consent, employees who adopt a menu of work schedule options can move from one schedule option to another on a weekly basis.5

The DLSE recommends that employers allow employees to freely choose the shift they will work; advise employees of the fact that each shift is limited as to the number who may choose that shift and inform employees of the “nondiscriminatory” method, such as a seniority based system or a system based on random selection, to be utilized in assigning the employees to a particular shift.6

The DLSE issued an Opinion Letter7 that states that employers can adopt an alternative workweek that rotates between two different schedules. In the employer’s case, the request was for four nine-hour days and one four-hour day during the summer months and five eight-hour days the rest of the year. The DLSE stated that such a schedule is allowed if it is for full workweeks during the designated months. The approval of this workweek was based on the specific schedule provided by this employer, with emphasis on the requirement that the alternate workweek begin and end during full workweeks.

• Before implementing an alternative workweek schedule, employers are advised to consult with legal counsel.

The 9/80 Schedule

Another possible alternative workweek that may be proposed to employees is the 9/80 schedule, also referred to as the 5-4/9 flexible schedule. The 9/80 schedule usually translates into a total of nine days of work in an 80-hour period — five days one calendar week and four days the following calendar week. Eight of the shifts are nine hours and one shift is eight hours.

Traditionally, workdays extend from midnight to midnight, and workweeks extend from midnight on a certain workday until midnight seven days later. The 9/80 schedule requires employers to define workdays and workweeks differently. Under the 9/80 schedule, you must begin the workweek for day shift employees between the fourth and fifth hours of work on any day of the week. This means the employee would work some hours of the shift on one workday and the remaining hours of that shift on the next workday. In addition, you would define the workweek so that employees will not be required to work more than 40 hours in that workweek.

In this way, the employer can establish a 9/80 schedule that does not exceed 40 hours in a workweek. The eight hours worked every other Friday are split in half, with the four hours worked before noon falling into the first workweek, and the four Friday hours worked after noon falling into the second workweek.

In both of the following 9/80 examples, the workweek and workday begin at noon on Friday and end at noon on the following Friday. The workday begins at noon on any given day and continues until noon the following day. This 9/80 alternative workweek schedule is consistent and repeatable over every two-week period.

In the second example, employees could work nine hours each day, except on alternate Thursdays when employees work eight hours and on alternate Fridays when employees do not work. This allows some of the Friday hours to be worked in one workweek and some in the next workweek.

Example 1:

Example 2:

Determine the Maximum and Minimum Hours Allowable

You can create an alternative workweek schedule in any combination of hours. However, you must pay overtime for all hours over 10 in one workday and over 40 in one workweek.8 For more information, see “Basic Overtime Obligation During an Alternative Workweek” in Paying Overtime in an Alternative Workweek.

Under most Wage Orders, all days in the alternative workweek schedule must be a minimum of four hours. However, Wage Order 16 (Certain On-Site Occupations in the Construction, Drilling, Logging and Mining Industries) does not contain a minimum number of hours.

Distribute a Written Disclosure

You must provide a written disclosure of the proposed schedule’s effects on the employees’ wages, hours and benefits. Failure to comply with this requirement invalidates the alternative workweek schedule election.

If at least five percent of the affected employees speak a language other than English, you must provide the written disclosure in English and the other language. You must mail a copy of the written disclosure to employees who did not attend the meeting to discuss the alternative workweek.

Hold at Least One Meeting

You must hold a meeting at least 14 days prior to voting for the specific purpose of discussing the alternative workweek schedule’s effects on the employees’ wages, hours and benefits. Give employees advance notice of the meeting date and time. You may need to hold more than one meeting if it is not practical or possible for all affected employees to attend at the same time.

Do Not Coerce Employee Support

You can express your opinion about the alternative workweek to the affected employees. However, you cannot intimidate or coerce employees to vote either in favor of or against a proposed alternative workweek. You cannot terminate or discriminate against employees for expressing opinions about the alternative workweek election or for opposing or supporting its adoption or repeal.

Hold a Secret Ballot Election

All affected employees in the work unit are entitled to a vote to approve or reject the proposed schedule in a secret ballot election. A two-thirds vote is required for the schedule to become effective. Do not require employees to put their names or other identifying information on their ballots. Both the statute and the Wage Orders clearly require that two-thirds of all affected employees must vote in favor of adopting the alternative workweek schedule, not just two-thirds of the employees who actually voted. In effect, an employee who doesn’t vote, votes no.9

You must hold the election during regular working hours at the affected employees’ worksite and pay all the costs. The vote must take place before the employees begin working the alternative workweek schedule. A retroactive vote is not effective.

Only those employees affected by the alternative workweek schedule can vote. Exempt employees in the unit do not vote.

Upon receiving a complaint by an affected employee, the Labor Commissioner must investigate and may require you to select a neutral third party to conduct the election.

• Employees affected by a change in the work hours resulting from the adoption of an alternative workweek schedule may not be required to work those new hours for at least 30 days after the announcement of the final results of the election.10

Alternative Workweeks and Wage Order 16

Alternative workweek procedures are slightly different under Wage Order 16, Certain On-Site Occupations in the Construction, Drilling, Logging and Mining Industries. At least 14 days prior to the election, you must notify all employees who are eligible to vote of the election date, time and place.

Employees are eligible to vote if they have been employed on the worksite within 30 calendar days immediately preceding the election. You must act in good faith and send the notice to each eligible employee’s last known address and include a ballot that the employees must bring to the election. Failure to show good-faith efforts to inform all eligible employees will void the election.11

The Wage Orders provide that “[t]he election shall be held during regular working hours at the employees’ worksite.” Some employees of a single employer who work in the on-site occupations covered by Wage Order 16 may be eligible to vote on one worksite while currently assigned to another worksite. The DLSE requires that each employee who is eligible to vote must have the opportunity to vote without loss of pay. If necessary, you must provide any current employee transportation to the worksite where the election is held. You must also pay for the time that the employee reasonably lost in voting during working hours.12

Submit Results of the Election

Submit the election results to the Department of Industrial Relations’ Office of Policy, Research and Legislation (OPRL) within 30 days of the final election. After you submit the results, they become a public document.

Do not send the actual ballots. Send election results to:

Attn: Alternative Workweek Election Results

Department of Industrial Relations

P.O. Box 420603

San Francisco, CA 94142-0603

Results submitted should include the following information: name of the business, address, city, state, zip code, county, nature of the business, date of election, date of letter, final and full tally of the vote, size of the affected work unit, and work schedule.

Retain Complete Records

Keep complete records of the alternative workweek election, as well as documentation showing how the schedule is being followed, including:

• The proposal submitted to employees
• The written disclosure distributed to employees
• Minutes from the meeting(s) held to discuss the proposed schedule
• Records of the election procedure
• Election results
• A copy of the memo about the election results submitted to DIR
• Documentation indicating that the results were properly filed with DIR
• Any documentation about employees who are unable to work the alternative workweek schedule and who are being accommodated with a different schedule
• Actual alternative workweek schedules or calendars
• Documentation of occasional changes to the schedule and notice given to employees about these changes
• Overtime records
• Meal period waivers
• Requests by employees to substitute their regularly scheduled working days
• Makeup time requests
• Petitions to repeal the alternative workweek schedule

Employers should consider including an alternative workweek policy to their employee handbooks.

Alternative Workweek Schedules Before 1999

Under Wage Order 1, Manufacturing Industry; Wage Order 4, Professional, Technical, Clerical, Mechanical and Similar Occupations; Wage Order 5, Public Housekeeping Industry; Wage Order 7, Mercantile Industry; and Wage Order 9, Transportation Industry, a limited provision exists for employees who were voluntarily working alternative workweek schedules before July 1, 1999. You can continue an alternative workweek schedule if it meets all of the following criteria:

• It was an individual agreement made between the employee and employer after January 1, 1998.
• It provides for a workday of not more than 10 hours.
• On or before May 30, 2000, the employee submitted a written request to continue the schedule, which you approved.

An employee can revoke this voluntary authorization to continue the schedule with 30 days written notice to you.

1. IWC Wage Orders sec. 3