Can an Employer Avoid Paying Overtime by Placing Employees on an Alternative Workweek Schedule in San Diego (AWS)?

Nick Ferraro | December 9, 2021 | Overtime

Employees deserve to be paid fair wages for their service. California has some of the most favorable wage and hour laws in the country, including laws requiring overtime pay. 

Most employers are required to pay overtime wages when an employee works over eight hours in any workday or over 40 hours in a workweek. 

Overtime pay consists of:

• One and one-half times the employee’s regular pay rate for any time worked over eight hours in a single workday up to 12 hours in a workday
• One-and one-half times the employee’s regular pay rate for the first eight hours of work on the seventh consecutive day worked in a workweek
• Double the employee’s regular pay rate for any hours worked over 12 hours in a workday and for all hours worked over eight hours on the seventh consecutive day in a workweek

For employers who require employees to work longer shifts, overtime pay can be a significant overhead cost. Fortunately, there are several exceptions to the rules for overtime pay. An Alternative Work Week Schedule is one of those exceptions that can save money for employers.

What is an Alternative Work Week?

Some employees prefer an alternative workweek, so the arrangement can benefit both employers and employees. An employer offers an employee a shorter workweek. For example, the employee would work four days a week instead of working five days a week. 

In exchange for the shorter workweek, the employee agrees to waive some of the overtime pay they would have received under California wage and hour laws. 

If the employee agrees, they give up overtime pay for any hours worked over eight hours a day up to 12 hours. If they work over 12 hours in any workday, the employer must compensate the employee by paying double time for those hours. The employee is still entitled to receive overtime pay for all hours worked over 40 hours in a workweek.

Are There Requirements That Must Be Met to Choose an Alternative Work Week?

Yes, there are steps that the employer must follow before it can institute an alternative workweek schedule. 

First, the employer must provide each affected employee with a written explanation describing the proposed changes to the workweek. Then, the employer schedules a vote with the workers affected by the new workweek schedule. However, a meeting must be held at least two weeks before the vote to discuss the proposed changes to the workweek schedule.

Workers vote by secret ballot during regular work hours. The employer must compensate workers for the time spent voting on the proposed alternative workweek schedule. Two-thirds of the affected employees must approve the alternative workweek schedule for the employer to institute the change.

However, one-third of the affected employees may call for a repeal of the alternative workweek schedule. The employer must hold another vote by secret ballot. If two-thirds of the affected employees vote to repeal the change, the workweek schedule reverts back to the regular schedule.

Another important point to remember is that exempting an employee from paying overtime under an alternative workweek schedule does not impact the rest break and meal period requirements. Therefore, employees must still have the option of taking the required meal periods and rest breaks.

An employee must be allowed to take a continuous 30-minute meal break after five hours of work. The meal break does not need to be paid, but the employer cannot make any demands on the employee or restrict the employee’s activities during that time.

Rest breaks are required periodically throughout the workday. The number of required rest breaks is based on the number of hours worked in a workday. Rest breaks are paid time.

What Should You Do if Your Employer Refuses to Pay Overtime?

If your employer fails to pay overtime wages, you have the right to file a lawsuit to recover unpaid wages. However, you may not need to jump directly to a lawsuit to receive your unpaid wages. A San Diego unpaid overtime lawyer may be able to help you settle the dispute with your employer without taking legal action.

Another option you have is to file an unpaid wage claim directly with the Labor Commissioner’s Office or the Division of Labor Standards Enforcement. Employers who violate wage laws for multiple employees could be subject to a class-action lawsuit by employees or a Private Attorney General Act claim. Consulting with a San Diego employment law attorney ensures that you understand all your options to decide which options are best for your situation.