Assemblyman John J. Benoit

(March 17, 2008) The California Chamber of Commerce is sponsoring legislation that allows employees and employers flexibility in work schedules to help accommodate the diverse family obligations, commuting issues and other personal obligations that employees face. Many local chambers of commerce are co-sponsoring the bill, AB 2127 (Benoit; R-Bermuda Dunes).

AB 2127 will allow a small employer (25 or fewer employees) to agree to an employee’s request to work an alternative work schedule and applies specifically to small businesses that are not covered by a collective bargaining agreement.

This Small Business Family Scheduling Option would add a much-needed boost for employers that are struggling to find qualified employees in a shrinking pool of candidates.

Stagnant Labor Force

According to the U.S. Department of Labor, the labor force is growing at a very modest rate, and the number of available workers between the ages of 25 and 44 may inevitably get smaller.

“The need for qualified employees should encourage employers to rethink recruitment and retention strategies for employees,” said CalChamber Policy Advocate Marti Fisher.

The ability to provide flexible work schedules to employees may aid in attracting and retaining employees, improving productivity and reducing absenteeism because employees can take care of personal business on personal time, Fisher said.

In addition to giving employers increased recruitment tactics, a recent study conducted by Patrick R. Casey and Joseph G. Grzywacz of the Wake Forest University School of Medicine found evidence that workplace flexibility could lead to a much healthier workforce.

Results from the data obtained in the study showed that increased flexibility was associated with decreased sickness absence, work-related impairment and improved job commitment over a one-year period.

“This study strengthens the evidence base for the beneficial health effects of workplace flexibility and suggests that organizations benefit from building a culture of flexibility in the organization,” the authors wrote in the abstract of the study.

Union Members Unaffected

Union employees and employers are covered by a collective bargaining agreement. Current language in California Labor Code Section 514 would allow the provisions of AB 2127 to be available only to small businesses with fewer than 25 employees that are not covered by a collective bargaining agreement.

If a small employer enters into a collective bargaining agreement subsequent to entering into an alternative workweek agreement, Section 514 mandates the collective bargaining agreement would apply instead.

Employee Protections

The bill contains important employee protections:

• The request for the small business family scheduling option must be made by the employee in writing, and it must be made voluntarily.
• The employer is required to maintain a copy of the written agreement, as it would a personnel record, for three years beyond termination of the agreement.
• The agreement must be executed in writing.
• Either the employee or the employer can revoke the agreement at any time, provided they give seven days written notice.
• Any hours worked beyond the compressed workweek hours must be paid at normal overtime rates.
• The employer is prohibited from reducing the employee’s regular rate as a result of the employee adopting an alternative workweek schedule.

Other Benefits

If AB 2127 becomes law, it offers the following benefits for employees:

• provides up to 50 extra non-work days each year;
• reduces traffic and frequency of long commutes at peak hours;
• reduces carbon emissions with fewer trips to the workplace; and
• supports a flexible work life, which studies have shown is good for individuals’ health.

Current Law

Under current Labor Code Section 511, and following the Industrial Welfare Commission wage orders, employers may institute alternative work schedules only if a supermajority of affected employees agrees to the arrangement by secret ballot. Then, all employees in the work unit are subject to alternative scheduling.

Therefore, more than one schedule is prohibited without repeating the voting process, and an employee does not have the option to return to a traditional workweek schedule without the secret ballot process taking place again.

“Any deviation from the rigidly controlled process voids the election and subjects the employer to potential lawsuits that can seek up to three years of back overtime pay for affected workers,” Fisher said. “This effectively eliminates most employers and employees from choosing alternative options.”

Action Needed

AB 2127 awaits action in the Assembly Labor and Employment Committee. Contact your legislators and committee members to urge them to support AB 2127 and greater flexibility for individual employee work schedules at small businesses.

Committee members are: Swanson (D-Oakland); Strickland (R-Moorpark); DeSaulnier (D-Concord); Fuentes (D-Sylmar); Gaines (R-Roseville); Laird (D-Santa Cruz); Leno (D-San Francisco); Ruskin (D-Redwood City).

For a sample letter, visit www.calchambervotes.com.

Staff Contact: Marti Fisher