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An alternative workweek schedule, or AWS, is a set workweek that requires an employee to work over 8 hours in a 24-hour period, but has fewer days in the workweek. Workers can decide to use an AWS by voting. If an AWS is adopted, it can impact an employee’s overtime pay.
What is an alternative work schedule?
In California, an alternative work schedule (AWS) is a different way to structure the workweek than the normal eight-hour day. Work units that choose to use one will have longer workdays. However, they will have shorter workweeks. Because the normal workday is longer, an AWS will alter an employee’s rights to daily overtime pay. However, because the workweek is the same, it will not alter the employees’ wages.
California labor law and the wage orders by the Industrial Welfare Commission allow for alternative workweeks that require employees to work up to 10 hours in a day.1 However, no AWS can require them to work more than 40 hours in a workweek. This provides flexibility to both employers and to employees. Different employees in a workplace can be on different work schedules. Any AWS adopted only applies to the work unit that approved it.
Alternative work schedules are allowed under California’s state employment law. Outside of the state of California, these laws have no effect, though some states may have their own laws allowing for an AWS.
How can an alternative workweek schedule be implemented?
Work units can implement an alternative workweek after their employer proposes it in writing or through a collective bargaining agreement. An employer’s proposed AWS is only adopted if two-thirds of the affected workers in the work unit approve of it. Voting must be done in a secret ballot.
When the employer proposes an alternative workweek schedule, it can offer a single AWS or a menu of options. One of these options can be a standard schedule of 8-hour days.2
The employer has to issue a written disclosure that details the proposed schedules and hold a meeting at least 14 days prior to voting. If more than 5 percent of the affected employees speak a language other than English, the written disclosure has to be provided in that language, as well. Employers can advocate for or against an AWS, but cannot intimidate, discriminate, retaliate, or discharge employees over the election or the AWS.3
The election to establish an alternative workweek schedule has to be held on the worksite of the affected employees, during regular working hours. It has to be a secret ballot election and has to happen before the new schedule is implemented. To pass, at least two-thirds of the vote of the affected employees in the work unit has to support the alternative schedule.4
If approved by two-thirds vote, California employers have to report the results of the election to the Division of Labor Standards Enforcement at the Department of Industrial Relations within 30 days.5
If employees adopt a menu of work schedule options, they can switch from one schedule to another on a weekly basis, with the employer’s consent.6
Regardless of whether workers vote to approve, deny, or repeal an alternative workweek schedule in the secret ballot vote, the employer cannot reduce their regular rate of pay.7
What is a work unit?
A work unit is any readily identifiable group of employees.8 This can include a:
- division,
- department,
- job classification,
- shift,
- separate physical location, or
- recognized subdivision of any other work unit.9
There is no need for there to be multiple workers in a work unit. It can still be an identifiable work unit if it only consists of a single employee.10
How can an AWS impact overtime pay?
If there is an alternative workweek schedule in place, it will alter how or whether non-exempt employees receive overtime pay in California.
Workers in an AWS are paid overtime wages for any hour worked in excess of:
- the regularly scheduled number of hours of work, as established by the AWS, or
- 40 hours per week.11
This is different from a regular worker’s right to overtime pay. When there is no alternative workweek schedule in place, non-exempt employees are entitled to overtime for hours worked in excess of:
- 8 hours in a single workday,
- 40 hours in a workweek, or
- 6 consecutive days in a workweek.12
In either case, overtime wages are 1.5 times the employee’s regular rate of pay.
Additionally, workers in an alternative workweek schedule are entitled to double-time pay for any hour worked in excess of:
- 12 hours in a workday, or
- the 8th hour of a day that is not in the AWS’s regularly scheduled workdays.13
This is different from double-time pay rights for workers who are not in an AWS. These workers receive double-time pay for hours worked in excess of:
- 12 hours in a single workday, or
- their 8th hour of their 7th day of work.14
In either case, these overtime premium wages are twice the employee’s regular rate of pay.
The payment of overtime has to be made no later than the payday for the next regular pay period.15
What are some common alternative schedules?
Some common alternative workweek schedules used in California workplaces include:
- a 4-day workweek, at 10 hours per day (known as a 4/10 work week),
- 8 days of 9 hours, 1 day of 8 hours, and an extra day off in a 2-week period (known as a 9/80 schedule, because it spaces the 80 hours over only 9 days), and
- 3 days of 10 hours and 2 days of 5 hours.
Legal References:
- California Labor Code section 511 LC and California Wage Orders 1-13, 16, and 17, section 3.
- California Wage Orders 1-13, 16, and 17, section 3(C).
- Same.
- Same.
- California Labor Code 511(e) LC.
- California Labor Code 511(a) LC.
- California Labor Code 511(c) LC.
- California Wage Orders 1-13, 16, and 17, section 3(C)(2).
- Same. See also California Labor Code 511(i) LC.
- Same.
- California Labor Code 511(b) LC.
- California Labor Code 510 LC.
- California Labor Code 511(b) LC.
- California Labor Code 510 LC.
- California Labor Code 204(b)(1) LC.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
