Important Disclaimer
June 2005
Daily Overtime and the Alternative Workweek
Prepared By: Melissa C. Marsh
Alternative workweek schedules permit many employers to avoid paying daily overtime to employees who work more than 40 hours a week. The maximum number of daily hours that may be regularly scheduled as part of an alternative workweek is currently the subject of debate. For most employers, the Division of Labor Standards Enforcement ("DLSE") has limited the maximum number of daily hours in an alternative workweek to 10-hours. An exception to the 10-hour limit is expressly set forth in wage orders for the health care industry, which permits a 12-hour workday.
Although the Industrial Welfare Commission removed the daily overtime requirement from most California wage orders in 1998, one year later they were restored. The Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999 requires employers to pay daily overtime for all hours worked in excess of 8 hours unless two-thirds of the employees of a company's separate unit or division by secret ballot agree to adopt an alternative workweek. The DSLE has consistently taken a rigid approach in its interpretation of Labor Code § 511 which sets forth the procedures for adopting and the rules governing the alternative workweek. In effect, the DLSE has limited the maximum daily hours in an alternative workweek to 10 hours, except for health care employees who can work a 12-hour day.
This single exception for health care workers, however, may change sometime in the very near future. In Mitchell v. Yoplait, 122 Cal. App. 4th Supp. 8 (2004), the appellate division of the Los Angeles Superior Court held that any employer may adopt an alternative workweek schedule that provides for
a 12-hour workday. The appellate division of the Los Angeles Superior Court reasoned that "[T]he purpose of section 511 was not to limit the overall number of hours in an alternative workweek shift, but rather to 'limit the alternative schedules to not more than 10-hours per day without triggering daily overtime.'" It therefore appears that California employers may schedule employees to work 12-hour daily shifts as part of an alternative workweek so long as the employer: (1) pays overtime for the last two hours in each 12-hour workshift and (2) follows the required procedures set forth in Labor Code § 511 to establish an alternative workweek.
Despite the ruling, the DLSE has continued to render opinions prohibiting alternative workweek schedules providing for 12-hour shifts. Until the legislature or the judiciary resolve this issue, California employers should refrain from adopting alternative workweek schedules that provide for regularly scheduled 12-hour shifts. |
