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In order to establish a valid AWS, the requirements must be strictly followed. If not, the AWS may not only be invalid, the employer will face significant liability for overtime pay.
An AWS, which an employer can propose, becomes valid if approved by 2/3 of the affected employees in the involved work unit after voting in a secret ballot. The AWS can be either a single work regular schedule or a menu of schedule options from which an employee may choose. The Wage Orders impose additional requirements regarding the election procedures which must be followed as well.
The Wage Orders require that an AWS proposal be in the form of a written agreement. The employer must distribute a written disclosure to all employees regarding an AWS proposal with notice of duly scheduled meeting at least 14 days before the election where the effects of the AWS will be discussed. A duly established AWS can be repealed in a subsequent vote by a 2/3 vote following a petition to repeal supported by 1/3 of the affected employees. Additional requirements exist regarding the establishment and repeal of an AWS which go beyond the scope of this article.
In summary, an AWS, commonly seen in the medical, dental, orthodontic, and chiropractic offices, presents an attractive alternative to the traditional workweek. However, employers are well served to consult with legal counsel if the establishment of an AWS is being considered or questions exist about one already in place.
Robert M. Caietti is with Walters & Caietti, APC, and has offices in Temecula at 41877 Enterprise Circle No., Ste. 200 and in San Diego, 3655 Nobel Dr., Ste. 510. He may be contacted at 909.296.1613 or 858.623.5655, or at email@example.com and www.walterscaietti.com.