The alternative workweek scheduling provisions of the law do not cover employees on public works projects and agriculture.

Until the end of 2018, Wage Order 14, Agricultural Occupations, permitted agricultural employees to work up to 10 hours per day without overtime, even without adopting an alternative workweek. Agricultural employers under Wage Order 14 with 26 or more employees are now subject to a series of phased-in overtime changes. Their agricultural workers will now receive overtime pay after 9.5 hours per day or 50 hours per week. Agricultural employers with 25 or fewer employees remain covered by the old rules for now, but will begin phased-in overtime changes in 2022.1

Employees working under a collective bargaining agreement fall under the agreement’s terms if the agreement provides premium pay for overtime hours and at least 30 percent higher wages than the state minimum wage.

The most notable variations in the alternative workweek scheduling provisions relate to the health care industry, where significant differences were created to allow for operational and customary practices.

Alternative Workweek Schedules and Health Care

Certain employees in the health care industry can vote to work shifts longer than 10 hours on an alternative workweek schedule. The alternative workweek regulations for these employees differ in other ways as well. This section explains which employees fall under the exceptions and explains pertinent regulations.

Health Care Employer and Employee Defined

The term “health care industry” is defined as any of the following:

• Hospitals
• Skilled nursing facilities
• Intermediate care and residential care facilities
• Convalescent care institutions
• Home health agencies
• Clinics operating 24 hours per day
• Clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis

Some employees in the health care industry fall under the alternative workweek schedule exceptions. These are employees who:

• Provide patient care or care to residents in a residential care facility
• Work in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting
• Work primarily or regularly as a member of a patient care delivery team
• Work as licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care

Some employees in the health care industry are not considered health care employees for purposes of the alternative workweek exceptions. These are employees who are primarily engaged in the following duties or combination of duties:

• Providing meals
• Performing maintenance or cleaning services
• Performing business office or other clerical functions

12-Hour Shifts Permissible in the Health Care Industry

Health care employees (under Wage Orders 4 and 5) can vote to implement a regularly scheduled alternative workweek schedule that includes workdays of up to 12 hours within a 40-hour workweek. When implemented, such an agreement means no overtime is required for those hours worked.

Employees in the health care industry on alternative workweek schedules must be paid overtime at the following rates:

• Double the employee’s regular rate of pay for all hours worked in excess of 12 in a workday
• 1.5 times the employee’s regular rate of pay for all hours worked in excess of 40 in a workweek

These overtime obligations also apply to employees temporarily assigned to a health care employer’s alternative workweek schedule.

Health care employees on a 3/12 schedule need not be paid time and one-half for the 37th through 40th hour in the regularly scheduled workweek.2

Minimum Shift Length in the Health Care Industry

An alternative workweek schedule in the health care industry cannot provide fewer than four hours of work in any shift.

Health Care Emergency

You can require an employee assigned to a 12-hour shift to work more hours in narrowly defined health care emergencies. A “health care emergency” consists of an unpredictable or unavoidable occurrence at unscheduled intervals relating to health care delivery, requiring immediate action.3

Only the Chief Nursing Officer or authorized executive of the hospital staff can declare a health care emergency.4 There must be an objective showing that all of the following criteria are met:

• A health care emergency exists.
• All reasonable steps have been taken to provide required staffing.
• Considering overall operational status needs, continued overtime is necessary to provide required staffing as defined at Section 2(I) of Wage Order 4-2001 and Wage Order 5-2001.

Even in a health care emergency, an employee can work no more than 16 hours unless there is a voluntary mutual agreement between the employer and the employee.

Relief for Employee No-Show in the Health Care Industry

An employee scheduled for a 12-hour shift can work up to 13 hours if the employee scheduled for the next shift does not report for duty and does not inform you more than two hours in advance that they will not be reporting.

Meal Break Waiver in the Health Care Industry

Employees in the health care industry who work shifts in excess of eight hours total in a workday can voluntarily waive their right to one of their two meal breaks. To be valid, the waiver must be in writing and you and your employee must sign it. The employee can revoke the waiver at any time by providing you with at least one day’s written notice. While the waiver is in effect, you must fully compensate the employee for all working time, including any on duty meal period.

Health Care Employees Unable to Work the Alternative Schedule

You must make a reasonable effort to find another work assignment for any employee who meets all of the following criteria:

• Is covered by Wage Order 4, Professional, Technical, Clerical, Mechanical and Similar Occupations, or Wage Order 5, Public Housekeeping Industry
• Participated in a valid election prior to 1998
• Is unable to work the alternative workweek schedule. If you are engaged in the operation of a licensed hospital that institutes a valid 3/12 schedule (three 12-hour workdays) or if you provide personnel for such an operation, you must make a reasonable effort to find another work assignment for any employee who participated in the vote and is unable to work the 12-hour shifts. You are not required to offer a different work assignment to an employee if such a work assignment is not available or if the employee was hired after the 3/12 alternative workweek schedule was adopted.

1.Lab. Code secs. 857-864

2.Singh v. Superior Court, 140 Cal. App. 4th 387 (2006)

3.DLSE Enforcement Policies and Procedures Manual sec. 56.23.3.2

4.IWC Wage Orders 4-2001, 5-2001 sec. 3(B)(9)