California Alternative Workweek Schedule: Adoption and Overtime

A California alternative workweek schedule lets non-exempt employees work up to 10 hours in a day without triggering daily overtime, but the employer has to earn that right through a formal adoption process: a written proposal, a mandatory pre-election meeting, a secret-ballot vote carried by two-thirds of the affected work unit, and a report filed with the Division of Labor Standards Enforcement within 30 days. Skip a step and the schedule is void, which means every hour past eight that was paid at straight time becomes a back-wage claim. The rules sit in Labor Code Section 511 and the applicable Industrial Welfare Commission wage order.

What an Alternative Workweek Actually Is

An alternative workweek is any regularly scheduled workweek that requires employees to work more than eight hours in a day.¹ The trade is longer days for shorter workweeks or extra days off, with no daily overtime owed on hours nine and ten. Section 511 caps the schedule at 10 hours per day within a 40-hour week.²

Two formats dominate. The 4/10 is four 10-hour days with three days off. The 9/80 spreads 80 hours across two weeks as eight nine-hour days plus one eight-hour day, which produces an off-Friday every other week. The 9/80 only works if the workweek start is defined precisely enough that neither week runs past 40 hours; a sloppy definition creates weekly overtime the schedule was meant to avoid.

An employer can propose one fixed schedule or a menu of options. A menu can include a regular eight-hour day as one of the choices, and employees can move between menu options weekly with employer consent.²

Who Votes: The Work Unit

An alternative workweek applies to a work unit, meaning a division, a department, a job classification, a shift, or a separately identifiable group within one of those. The whole unit votes together and lives under the same schedule or menu. You cannot put some employees in a unit on the alternative schedule while leaving others on a standard eight-hour day.

Health Care Exception

Health care employers covered by IWC Wage Orders 4 and 5 can adopt shifts longer than 10 hours, up to 12 hours a day, still within a 40-hour week, without paying overtime for those extended hours.³ Same election rules; longer daily cap.

Adopting the Schedule

Every step below is mandatory. Missing one voids the election.

Written Proposal and Disclosure

The proposal has to specify the number of regularly recurring workdays and hours in the schedule and disclose the effects on wages, hours, and benefits.² If holiday pay, sick leave, or PTO accrual will change, say so in writing.

Language matters. If at least five percent of affected employees primarily speak a language other than English, the written disclosure must be provided in that language as well.¹ Missing this alone can invalidate the election.

Pre-Election Meeting

At least one meeting with affected employees has to happen at the worksite during regular working hours, no fewer than 14 days before the vote, to discuss the effects of the proposed schedule.² Anyone who can’t attend must receive the written disclosure by mail.

Secret Ballot Election

Adoption requires at least two-thirds of affected employees in the work unit to vote yes by secret ballot.² That is two-thirds of the entire unit, not two-thirds of the people who show up. The election is held on the worksite during regular hours, and the employer pays the costs.

Report to DLSE

Within 30 days of the final results, the employer reports the outcome to the Division of Labor Standards Enforcement.²

How Overtime Is Paid Once the Schedule Is in Place

A valid alternative workweek moves the daily overtime trigger. It doesn’t remove overtime.

On a 4/10, the first 10 hours in a day are straight time. Time-and-a-half applies to hours worked beyond the regularly scheduled amount and to any hours beyond 40 in the workweek.²

Double time still starts at 12 hours in a day regardless of the alternative schedule.⁴ It also applies to hours beyond eight on the seventh consecutive day in a workweek.

Work on unscheduled days is where employers get burned. When a 4/10 employee is called in on what would have been a day off, that day is not part of the adopted schedule, so the standard eight-hour daily overtime rule reasserts itself. Time-and-a-half applies to work up to eight hours on that day.⁵ Hours past 40 in the workweek are also overtime.

Meal and Rest Breaks on 10-Hour Shifts

The break rules do not soften because the shift is longer.

A 30-minute meal period is required when an employee works more than five hours, waivable by mutual consent only if the total shift is six hours or fewer. A second 30-minute meal period is required once the workday goes past 10 hours, and it can be waived by mutual agreement only if the shift will not exceed 12 hours total and the first meal break was not waived.⁶ For a 4/10 employee, the second meal waiver is available, but the consent has to be genuine each time.

A missed meal period costs one additional hour of pay at the regular rate for each workday it occurred. On a schedule where every shift is 10 hours, those penalty hours accumulate quickly.

Rest breaks follow the standard formula: 10 paid minutes for every four hours worked or major fraction. A 10-hour shift generally means three rest breaks.

Protections the Employer Cannot Waive

The employer must make a reasonable effort to find a schedule of no more than eight hours per day for any employee who was eligible to vote and cannot work the adopted alternative schedule. For employees hired after the election who can’t work the schedule, the employer may but is not required to offer an eight-hour accommodation.⁷

Religious accommodation gets a further layer. If an employee’s religious beliefs or practices conflict with the schedule, the employer must explore every reasonable alternative under the same standards that govern religious accommodation under California’s Fair Employment and Housing Act.

Intimidation and coercion around the vote are prohibited. No employee can be fired or discriminated against for expressing opinions about the schedule or for supporting or opposing its adoption or repeal.⁷ The employer also cannot cut anyone’s regular hourly rate as a result of adopting, repealing, or nullifying the schedule.¹

Make-Up Time

California lets an employee take time off for a personal obligation and make up the missed hours in the same workweek without generating overtime.⁸ The mechanics matter:

A separate signed written request from the employee is required each time.
Make-up hours cannot push total daily hours past 11.
Make-up hours cannot push total weekly hours past 40.
The make-up must happen in the same workweek as the missed time.
The employer is prohibited from encouraging or soliciting employees to use make-up time as a way to avoid paying overtime.⁸

What a Botched Adoption Costs

An alternative workweek adopted without following the required procedures is null and void, not merely voidable. Miss the written disclosure, skip the pre-election meeting, ignore the non-English language rule, and the election is invalid.¹ The standard eight-hour daily overtime rule then applies retroactively, so every ninth and tenth hour previously paid straight becomes an underpaid hour.

Exposure stacks. On top of back overtime wages, the applicable IWC Wage Order imposes civil penalties of $50 per underpaid employee per pay period for an initial violation and $100 per underpaid employee per pay period for subsequent violations, plus recovery of the underpaid wages.¹ Multiply that across a 50-person work unit and a year of pay periods and the number is significant.

Repealing the Schedule

An alternative workweek stays in place indefinitely until affected employees vote it out. To trigger a repeal election, at least one-third of the affected employees in the work unit must sign a petition. A petition cannot be filed until at least six months have passed since the election that authorized the current schedule.⁹ Once a valid petition is delivered, the employer must hold a new secret ballot election within 30 days.

The vote threshold to repeal is set by the applicable IWC Wage Order. Under IWC Order 16, for example, a two-thirds vote of affected employees is required to reverse the schedule.⁹ Check the wage order that governs your industry, because the specific threshold and procedural details vary.

1
Department of Industrial Relations. California Code of Regulations Title 8 Section 11170 – Miscellaneous Employees
2
California Legislative Information. California Code Labor Code 511 – Alternative Workweek Schedules
3
Department of Industrial Relations. IWC Wage Order 5-02 – Public Housekeeping Industry
4
California Legislative Information. California Code Labor Code – LAB 510
5
Department of Industrial Relations. Exceptions to the General Overtime Law
6
Department of Industrial Relations. Meal Periods
7
Legal Information Institute. California Code of Regulations Title 8 Section 11110 – Order Regulating Wages, Hours, and Working Conditions in the Broadcasting Industry
8
California Legislative Information. California Code Labor Code 513 – Makeup Work Time
9
Department of Industrial Relations. IWC Order 16 Section 3(C)(7)