(March
2000)
Wage & Hour: Overtime Law Update
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March 1, 2000
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All employers
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| The new overtime law went into
effect on January 1, 2000 without any new regulations to guide
employers. Now, an “Interim Wage Order” has been issued,
providing more information for complying with the new overtime
laws. In addition to clarifying certain matters, new deadlines
are included that every employer should note. More changes are
expected during this year. |
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The California Industrial Welfare
Commission has finalized its Interim Wage Order, providing additional
information for complying with the new overtime requirements
that went into effect on January 1, 2000 pursuant to AB 60. The
Order is effective as of March 1, 2000 and must be posted at
every workplace. (Employers covered by Wage Order 14 covering
Agricultural Occupations must post only Section 10 of the Interim
Wage Order.) The Interim Wage Order is intended to supplement
and modify your current Wage Order, so you must post the two
of them next to each other. The Interim Wage Order is available
either at the Industrial Welfare Commission’s web site:
www.dir.ca.gov/IWC or by mail from the IWC.
The Interim Wage Order clarifies many points regarding alternate
workweeks. An individual employee who was voluntarily working an
alternative workweek of not more than 10 hours per day since before
July 1, 1999 under Wage Orders 1, 4, 5, 7 or 9 may continue to
do so after January 1, 2000 if the employee voluntarily requested
to do so. Such an employee must make this request in writing and
the employer must approve it in writing no later than May 30, 2000
for the individual’s schedule to be legal. Any time worked
in excess of 8 hours per day prior to this written approval must
be paid at overtime rates. The employee can revoke the alternate
schedule with 30 days’ written notice to the employer.
Alternate schedules adopted by a majority vote of affected employees
will be very difficult to implement properly. An employer must
provide employees with the exact schedules being voted on; simply
offering 4 days a week, 10 hours per day is not sufficient. This
may make it difficult if the employer needs to cover a number of
shifts per week. The employees would need to be provided with a
menu of specific options, each of which is subject to group approval.
If an employer does not have enough votes to cover a particular
shift, the employer cannot require employees to work that shift.
An employee cannot be moved to another schedule unless the employee
requests to be moved. If an alternate schedule is adopted and the
employer needs to accommodate an employee who cannot work it, the
employer’s accommodation cannot require the employee to work
more than 8 hours in a single day. This means that an employee
who needs to shave 1 hour off a 10-hour workday must lose 2 hours
instead. Also, if you have an alternate work schedule, but require
an employee to work reduced hours on a particular day, you must
pay overtime for any time worked in excess of 8 hours on that day.
A non-exempt employee who will need time off for personal obligations
may request to make up the time during the same workweek. The Interim
Wage Order would permit the employee to make a single written request
for making up time on multiple days; however, such a request cannot
be made more than 4 weeks in advance. There is no stated limit
on how far ahead an employee may request make-up time for a single
event. Remember that the employee cannot work more than 11 hours
in one day in order to make up the time, and the employer cannot
solicit or encourage such requests. There is no obligation for
employers to allow this option or to approve such requests. |
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The idea of an alternate schedule
approved by an employee vote may sound simple and appealing,
but the reality of the rules make it attractive for only a narrow
number of situations. For the right operation, the alternate
schedule can be a great tool. This works best for a business
that can establish a simple, single alternate schedule that will
not need to fluctuate (such as having business hours limited
to 4 days per week, 10 work-hours per day). Employees who know
they have a weekday available for appointments and errands tend
to miss less work time and may be less stressed at work. Three-day
weekends also can attract and retain valuable people.
However, employers who have complex operations or need more flexibility
in their work schedules may find that alternate workweeks will
not provide any savings or benefits. For most, simply paying overtime
after 8 hours per day may be the most cost effective approach.
Given the strict nature of the rules, any employer considering
an alternate schedule should obtain qualified legal advice before
taking any steps. See the August 1999 and February 2000 issues
of The Strategic Employer for more information.
This bulletin is a general overview of the subject matter, and
is not meant to provide professional opinions regarding any specific
case, matter, or set of facts, or to substitute for the professional
advice of Waag and Co. Instead, please contact Susan S. Waag, Esq.
for additional information. |
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