I want to work a flexible workweek where I work 10 hours one day and fewer hours on the other days. My employer insists that I can’t do that without obligating them to pay me overtime. What are my options in this matter?
JD’s employer has a couple of options. The employer could offer an alternative workweek which would require 2/3 of the eligible employees to vote on and approve an alternative workweek. See Alternative Workweeks: A Primer. While there are limitations on the number of daily and weekly hours the employee can work without the employer incurring overtime obligations, the available schedules are fairly limitless.
Under an alternative workweek plan, no workday can be less than 4 hours and cannot exceed 10 hours. Section 56.7.3 of the DLSE Enforcement Manual states:
An alternative workweek schedule may be any combination of hours up to ten (10) hours per day within a forty (40) hour workweek. For instance, a workweek of four days of nine (9) hours and one day of four (4) hours would be valid. The schedules must be consistent; but may differ from one workweek to the next if the schedule is a regularly recurring one. For instance, an alternative workweek schedule which provides that in the first week the employee works Monday through Thursday and in the second week works Tuesday through Friday would be valid so long as the schedule is regular and recurring.
Another acceptable alternative workweek would be to allow employees to work 10 hours on Monday, 8 hours on Tuesday through Thursday and 6 hours on Friday. As long as the schedule is regular and recurring the possible combinations are up to the employer and the employee.
Of course, adopting an alternative workweek would require the employer to comply with all of the requirements of Labor Code Section 511 and any applicable wage orders. On a case by case basis, it might be simpler for an employer to allow employees to use the Makeup Work Time option contained in Labor Code Section 513.
Labor Code Section 513 allows an employer to approve a written request from an employee to make up work time that is or would be lost as a result of a personal obligation of the employee as long as the makeup work time is performed in the same workweek in which the work time was lost. In order for the employer not to incur any overtime obligations:
- The employer cannot encourage or otherwise solicit an employee to request the employer’s approval to take the personal time off and make up the hours within the same week;
- The makeup hours must be worked in the same workweek in which the time was lost;
- The employee must request the makeup time in writing; and
- The employee cannot work more than 11 hours in any one day and cannot work more than 40 hours in the workweek.
The makeup work time provisions of Labor Code Section 513 are much easier to implement. I would recommend to any employer wishing to allow employees to use the makeup time provisions to obtain the request prior to working the overtime and prior to missing the work if at all possible. I recommend against “blanket” requests that cover extended periods of time. Instead, employers should have a separate request from the employee for every week when the employee wants to use the makeup provisions of Labor Code Section 513.
Of course, nothing requires an employer to offer an alternative workweek or to approve an employee’s request to make up work time.
If you are considering adopting an alternative workweek or if you have any questions about the makeup work time provisions of Labor Code Section 513, you should seek the advice of counsel.
Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
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