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When Can an Employer Avoid Paying Overtime in California? The Alternative Week Rule

Generally speaking, non-exempt employers must pay workers time and a half (or double in some instances) for time worked that qualifies for overtime under the California Labor Code. This includes hours worked over 8 in a day. This works to the disadvantage of some employers in industries that require workers to handle long shifts. However, California allows employers a solution to avoid having to pay overtime if workers elect for an alternative schedule. This exception is known as the alternative work week.

The alternative work week allows employers to offer workers a shorter work week. For example, 3 or 4 days instead of 5, in return the employee gives up the right to receive some overtime, but only for the hours worked over 8 in a day. Employees under the alternative week schedule are still entitled to receive overtime for hours worked over 40 in a week, as well as the double rate for hours worked over 12 in day.

An employer may not simply decide to apply the alternative workweek, there are specific requirements an employer must follow. First, the employer has to put the work week alteration to a vote with the affected workers. But before the vote, they must provide the workers with a written proposal of the changes, and conduct a meeting 2 weeks before the day of the vote. Additionally, the vote must be a secret ballot during normal work hours, which the employer must pay for. If successful the proposal for an alternative workweek will only be valid if two thirds of the employees approve the alternative work week.

After the alternative workweek is approved the employer is still on the line if the employees decide to repeal it. If one third of affected workers propose a repeal of the alterative workweek the employer must hold another secret ballot and repeal the schedule if 2/3 of the workers vote to repeal it.

Additionally, the fact that an employer does not have to pay for overtime for more than 8 hours worked in a day does not affect the requirement to provide workers with rest breaks. Employees working more than 10 hours a day require the option to take a 30 minute lunch break. If working more than 12 hours they must have the option to take a 10 minute break.

If your employer has failed to pay you the overtime you rightfully earned, you are not alone. Each year thousands of employees and former employees bring lawsuits against employers to receive unpaid overtime compensation they are entitled to. To learn more contact the experienced California employment attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free case evaluation by calling (858) 376-7390 today.

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