Some Flexible Schedules Aren’t As Flexible as Employees May Believe
It is understandable an employee might want to skip a meal break in order to leave early, or to work four 10-hour days so they can have Mondays or Fridays off. But California law has an incentive to preserve the eight-hour workday and imposes restrictions on off-the-cuff modifications. The aim is to make sure work schedules are not used as a tool for abuse even if the employee requests the modification.
Employers cannot allow an individual employee in a department to permanently modify her or his schedule without complying with California law. Under state law, this is only allowed on a department-wide basis. Laws governing alternative workweek schedules (AWS) require all employees in the affected department – which can be as a few as one departmental employee - to vote on whether to modify the eight-hour day schedule. The results of the vote must then be submitted to the Department of Labor Standards Enforcement within 30 days of finalizing the results.
Two-thirds of employees must vote to accept the new schedule. Only when the vote is certified can an employer begin working with department employees on new schedules.
There are ways to accommodate smaller numbers of employees. Employers can spin off a few employees and create a smaller department so long as the department is a readily identifiable work unit. Those employees can then vote on alternative schedules, whether it is four 10-hour days, four 9-hour days and one 4-hour day, etc. Again, a two-thirds vote is required to establish a new workweek schedule.
Employers need to preserve copies of all records associated with establishment of an AWS including proof of mailing to the DLSE. Casual modifications of work schedules leave employers open to legal risk. Flexibility is valued, but the state still has an incentive in ensuring state employment laws are uniformly and fairly applied. Helping employees understand that will aid in discussions when crafting employee-friendly schedules.