Alternative workweek schedule during summer months

STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
455 Golden Gate Avenue, 9th Floor
San Francisco, California 94102
(415) 703-4863
(415) 703-4806 fax

ANGELA BRADSTREET, STATE LABOR COMMISSIONER

ROBERT R. ROGINSON
Chief Counsel

                                   March 23, 2009

Jonathon Siegel
Samantha N. Hoffman
Jackson Lewis, LLP
5000 Birch Street
Suite 5000
Newport Beach, California 92660

   Re: Alternative Workweek Schedule During Summer Months

Dear Mr. Siegel and Ms. Hoffman:

    This is in response to your letter dated March 24, 2008, requesting an opinion of this office

concerning alternative workweek schedules. Specifically, an employer represented by your firm
would like to adopt a schedule that would rotate between a schedule of four 9-hour days and one 4-
hour day during the summer months and five 8-hour days during the rest of the year. In subsequent
discussions with your office, you informed that the employer in question manufactures
pharmaceutical products and that the proposed schedule would affect only one of its locations in
California and apply only to those full workweeks within the specified months. As described more
fully below, it is the opinion of this office that the pertinent Labor Code and Industrial Welfare
Commission wage order provisions do not prohibit the employer described in your letter from
implementing the proposed alternative workweek schedule.

    The employer identified in your letter must comply with Labor Code § 511 and the

procedures set forth in Section 3 of Wage Order 1-2001 in adopting an alternative workweek
schedule. Labor Code § 511(a) provides that the employees of an employer may adopt a "regularly
scheduled alternative workweek schedule that authorizes work by the affected employees for no
longer than 10 hours per day within a 40-hour workweek without the payment of overtime to the
affected employees." Labor Code § 500(c) defines "alternative workweek schedule" to mean "any
regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour
period." Labor Code § 500(b) defines "workweek" to mean "any seven consecutive days, starting
with the same calendar day each week. 'Workweek' is a fixed and regularly recurring period of
168 hours, seven consecutive 24-hour periods." Section 3(C)(1) of Wage Order 1-2001 further
provides that the proposed agreement must designate a regularly scheduled alternative workweek
in which the specific number of work days and work hours are regularly recurring. In doing so, the
employer may propose a single work schedule that would become the standard schedule for
workers in the work unit, or a menu of work schedule options, from which each employee in the
unit would be entitled to choose.

    Under the facts presented, your client's proposed alternative workweek schedule meets the

requirements for an alternative workweek schedule under Labor Code § 511 and Wage Order 1-
2001. Specifically, it proposes a single, regular schedule that will occur each year only for a
specified and temporary period of time, namely for the full workweeks within the summer months
of June through September. During the remaining weeks and months of the year, the employees
will continue to operate on a standard five-day workweek for eight hours a day. The alternative
workweek schedule is regularly recurring because for each full workweek during the four
identified summer months, the affected employees will work four 9-hour days and one 4-hour day.
This also complies with the requirement in Section 3(B)(1) of Wage Order 1-2001, which requires
that any alternative workweek schedule adopted must provide for not less than four hours of work
in any shift. Lastly, the proposed alternative workweek schedule would apply only to the full
workweeks during those summer months.

    Neither Labor Code § 511 nor Section 3 of Wage Order 1-2001 requires that an alternative

workweek schedule be implemented for each workweek of the year, and we decline to impose such
restrictions on the schedule proposed here. Rather, what is required is that the schedule be
regularly recurring. This is established under the facts presented here where the schedule is
determined in advance, fixed, and employees are capable of being provided notice as required in
the wage order about the days and times during which they will be required to work under the
alternative workweek schedule. As stated by the Industrial Welfare Commission in its Statement
as to the Basis:

    [t]he phrase "regularly scheduled," as set forth in Labor Code § 511(a), means that
    the employer must schedule the actual work days and the starting and ending time
    of the shift in advance providing the employees with reasonable notice of any
    changes, wherein said changes, if occasional, shall not result in a loss of the
    overtime exemption. However, in no event does Labor Code § 511(a) authorize an
    employer to create a system of "on-call" employment in which the days and hours of
    work are subject to continual changes, depriving employees of a predictable work
    schedule.

    The proposed alternative workweek schedule is not a system of "on-call" employment, but

rather is stable, predictable and not subject to continual changes. The employer, of course, must
comply fully with the procedures set forth in Section 3(C) of Wage Order 1-2001, including,
among other things, the notice and meeting procedures set forth in Section 3(C)(3). The employer
must also comply fully with the accommodation obligations set forth in Labor Code § 511(d) and
Section 3(B)(5)-(6) of Wage Order 1-2001, and under Labor Code § 511(c), the employer may not
reduce an employee's regular rate of hourly pay as a result of the adoption of the schedule. It is
also the opinion of this office that to the extent that the proposed alternative workweek schedule
remains the same each year, i.e. a schedule of four 9-hour days and one 4-hour day during the full
workweeks in the summer months, and is presented to the employees for adoption as such in the
procedures set forth in Section 3(C)(3) of Wage Order 1-2001, it is not necessary to conduct
further elections each year.

    This opinion is based exclusively on the facts and circumstances described in your request

and is given based upon your representations, express or implied, that you have provided a full and
fair description of all facts and circumstances that would be pertinent to our consideration of the
questions presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented
that this opinion is not sought by a party to pending private litigation concerning the issues
addressed herein. You have also represented that this opinion is not sought in connection with an
investigation or litigation between a client or firm and the Division of Labor Standards
Enforcement.

    I hope that the above sufficiently responds to your request and I thank you for your interest

in compliance with California wage and hour law.

                                Very truly yours,

                                Robert R. Roginson
                                Chief Counsel

RRR:

Cc: Labor Commissioner Angela Bradstreet