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How much flexibility do we have to set up alternative workweek schedules?

by on
in Employment Law,Human Resources

Q. Our company employs nurses that care for patients in their homes. We would like to begin running 12-hour shifts and set up an alternative workweek schedule. What are the rules for instituting an alternative workweek for our employees?

A. Under the Industrial Welfare Commission’s Wage Orders 4 and 5, employers in the health care industry may institute (for eligible employees) “a regularly scheduled alternative workweek schedule” that allows work in excess of 10 hours but no more than 12 hours in a day without overtime pay.

If a health care employer establishes an alternative work­­week schedule, the normal overtime rules won’t apply for affected employees. Instead, nonexempt em­­ployees will be entitled to one-and-one-half their regular rate of pay for all hours worked over 40 in a work­­week and double time for all hours worked in excess of 12 in a work day.

Time-and-one-half is not owed for hours worked beyond the regularly scheduled alternative workweek schedule, such as the 37th through 40th hours in a week in which employees are scheduled to work three 12-hour shifts. The rules provide that employees who are temporarily assigned to a work unit covered by a valid alternative workweek schedule shall be subject to the same overtime standards as full-time employees.

Employees must meet two conditions to qualify. The first is that employees must work for a health care industry employer. This includes “hospitals, skilled nursing facilities, intermediate care and residential care facilities, convalescent care institutions, home health agencies, clinics operating 24 hours per day, and clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology or dialysis.”

In addition, individuals must qualify as employees in the health care industry. “Employees in the health care industry” includes employees providing patient care, working in a clinical or medical department (including pharmacists dispensing prescriptions in any practice setting) or working primarily or regularly as a member of a patient care delivery team. Also qualified are licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care.

The terms expressly exclude “those persons primarily engaged in” providing meals, performing maintenance or cleaning services or performing business office or other clerical functions, as well as those primarily engaged in performing a combination of excluded duties.

Employers must follow an elaborate procedure in order to adopt and implement an alternative workweek schedule. Steps include providing a written agreement, disclosing it to affected employees and gaining their approval via a secret-ballot election held at the employer’s expense. Employers must report the results of any election conducted pursuant to the alternative workweek schedule rules to the Division of Labor Statistics and Research within 30 days after the results are final.

If you would like to institute an alternative workweek schedule, keep in mind that Wage Orders 4 and 5 create a penalty that applies when an employer requires an employee to work fewer hours than those specified in the alternative workweek schedule agreement.

Under an alternative workweek schedule agreement, if an employer “requires an employee to work fewer hours than those that are regularly scheduled by the agreement,” it must pay overtime at the rate of one-and-one-half the employee’s regular rate of pay for all hours worked in ex­­cess of eight hours and double the employee’s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours.

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