Individual Flexibility If Worker/Employer Both Agree

(March 12, 2007) The California Chamber of Commerce is sponsoring legislation to permit individual workers and their employers to mutually agree to a four-day workweek.

Assemblyman John J. Benoit

The bill, AB 510 (Benoit; R-Bermuda Dunes), will help individual employees achieve greater flexibility in work schedules — something survey after survey shows employees want in a job.

The CalChamber sponsored similar legislation during the 2005-06 legislative session: AB 640 (Tran; R-Garden Grove), SB 1254 (Ackerman; R-Tustin) and AB 2217 (Villines; R-Clovis). The bills all failed in Assembly and Senate policy committees on party-line votes.

“Permitting individual flexibility is one way employers can help workers find some relief from hectic days, long commutes, high gasoline prices and conflicting work and personal schedules,” said Marti Fisher, CalChamber policy advocate for labor and employment, health care and small business.

“To help employers provide that flexibility, California needs to change the law enough to permit four-day workweeks for individual workers who want to find a balance between their work and personal lives,” she said.

AB 510 will permit an individual employee, with the consent of his/her employer, to work up to 10 hours per day within a 40-hour workweek without overtime pay. Overtime premium pay still would be required for more than 10 hours of work in a workday or 40 hours in a workweek, as would double-time after 12 work hours in a day.

Union Practice
The legislation notes that unionized workplaces already allow workers to choose to work four 10-hour days, but that it is virtually impossible for workers at non-unionized workplaces to enjoy the benefit.

“No compelling public policy reason exists for this discrepancy in the flexibility of work schedules between unionized and non-unionized workers,” the legislation states.

Current Law
California law requires that overtime compensation be paid for work performed by an employee in excess of eight hours in a single day, regardless of whether the employee works fewer than 40 hours in that week.

California is one of only four states that do not conform wage laws to the national Fair Labor Standards Act (FLSA). The FLSA bases its overtime compensation requirements for salaried, non-exempt employees on total hours worked per week, rather than total hours worked per day.

Under current and very detailed California Industrial Welfare Commission wage orders, employers may institute alternative work schedules only if the affected employees agree to the arrangement in writing and by secret ballot.

Employers must hold discussion meetings at least 14 days before voting. Two-thirds of the company’s employees must agree to the change. Any deviation from the rigidly controlled process voids the election.

The rules also state that daily work schedules are limited to a maximum of 10 hours per day, with a four-hour daily minimum. Variances in schedules or the use of more than one schedule is prohibited without repeating the voting process.

Of the three states with overtime requirements, the state of Alaska has substantially similar overtime payment requirements as California. Nevada has an eight-hour requirement but also permits 10-hour days when a worker and employer have a specific agreement. Wyoming applies eight-hour overtime rules only to businesses not covered by the FLSA.

Few Use Complex Process
California’s complex process in effect eliminates most employers and employees from choosing schedule options such as flextime, part-time, job sharing, telecommuting and compressed workweeks. Only a handful of California employers are trying to operate under the restrictive provisions in the Labor Code.

Employers that are offering a staggered work schedule without going through an election process are operating in violation of the law.

Exempt from daily overtime are employees covered by collective bargaining agreements — these include all state, county and city employees, such as those employed by school districts, water districts and a multitude of other governmental agencies.

Surrounding States
The states bordering California have more flexible rules.

• In Oregon, employees working overtime must be paid at 1.5 times their regular rate of pay after working 40 hours in a single week.
• In Washington, most employees paid hourly are entitled to 1.5 times their regular rate of pay for any time worked over 40 hours in a seven-day workweek. Some salary- or commission-based employees also must be paid overtime.
• Arizona does not have state-set overtime rules and instead requires employers to use the 40-hour requirements set out in the federal FLSA.
• In Nevada, an employer must pay 1.5 times an employee’s regular rate of pay whenever an employee works more than 40 hours in a week or more than eight hours in any workday, unless the employee and employer have made a specific agreement providing for a scheduled 10-hour day with a four-day workweek.

CalChamber Position
The CalChamber strongly believes that permitting individual workers and their employers to arrange and use a four-day workweek will give employees more flexibility and employers the ability to be more responsive to employee work/life needs.

AB 510 awaits a hearing date in the Assembly Labor and Employment Committee.

Staff Contact: Marti Fisher

Caption

Assemblyman
John J. Benoit