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Employment Law/AWW schedule and overtime pay.

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Question
We work 10 hour days with 4 on 4 off in a food processing plant in California. Our scheduled days on/off rotate forward one day each week. M-Th, Tu-Fr, We-Sa, etc. Recently, our company adjusted our work schedule where we now work 5 consecutive days of 10 hours for 4 weeks and then 4/4 for 3 weeks, but with the rotating days on/off, we end up with only 40 hours in each company payweek. The company payweek runs Monday-Sunday. Is it legal for our company to force us to work 5 days, 50 consecutive hours and claim we only work 40 hours in a pay period and only pay us for 40 hours on each paycheck by splitting our days across the end and into the start of the next payweek? I can elaborate on the schedule we work if I need to be more clear on how our alternative work week currently runs.

Answer
David,

Implementation of an alternative workweek schedule under the California Labor Code has been the subject of numerous cases and disagreement among wage and hour law experts. The California Division of Labor Standards Enforcement (DLSE) has issued opinions as well on this exception to the California overtime pay laws.

The first issue that arises with alternative workweeks is proper adoption, because if not properly adopted by the employees, it is not valid and does not permit the employer to avoid the standard California overtime laws. To be valid, company employees must vote to adopt, by secret ballot election, a regularly scheduled alternative workweek that authorizes work for not more than 10 hours each workday within a 40-hour workweek, without the payment of overtime. You can check the alternative workweek elections database to see if your employer has filed alternate workweek election results with the Division of Labor Statistics and Research pursuant to California Labor Code section 511(e) - http://www.dir.ca.gov/databases/oprl/dlsr-awe.html

A "workweek" and is the timeframe against which weekly overtime is measured.  A workweek is defined as any 7 consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. The workweek and the pay period are two distinct concepts.  When determining weekly overtime pay, it is only the number of hours actually worked within each workweek (not pay period) that count - each workweek stands alone. So, even though you may be working 50 hours on consecutive days, for the purpose of weekly overtime, your hours may fall in two different workweeks.  

I hope that this information is helpful in furthering your research.  For further information and guidance based upon more details, I would suggest that you contact the California DLSE at (888)275-9243 or http://www.dir.ca.gov/dlse/aboutDlse.html#contactdlse . has stated that the schedule must be “regularly recurring”, not necessarily recurring every workweek.  

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Michael Lore

Expertise

I will take questions regarding employment law, with a focus on wage and hour issues involving overtime pay under the Fair Labor Standards Act (FLSA) and applicable state laws (eg. California).

Experience

I am an attorney with 15+ years experience in the area of labor and employment law, with a practice that concentrates heavily in the area of wage and hour litigation - involving unpaid overtime wages, commissions, work related expenses and vacation pay.

Organizations
American Bar Association, American Association for Justice, National Employment Lawyers Association

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BBA in Finance, J.D.

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