Ask the HR Expert — August 24, 2017

by Kathryn Carlson on August 24, 2017

Q: Back in April, our employees approved an alternative workweek schedule in which they work 4, 10-hour shifts (4-10s).

We’re currently in our busy season and need to hire temps. As a result, we’ve implemented a 2 on, 2 off, 10 hours-per-day schedule, instead of the approved alternative workweek schedule.

Are there any compliance issues with this approach?

A: This issue is affected by state laws which vary from state-to-state. Having said that, alternative workweeks cannot be randomly changed. Therefore, going to a 2 on, 2 off schedule is not appropriate. In California, for example, employers must have a 2/3 majority vote from employees in order to repeal a previously approved alternative work schedule and then the new schedule must be put up for another employee vote before it can be implemented.

However, if your temp employees work in a different work unit/department or they can be classified as a different work unit, they can work an alternative schedule that is different than your other employees’ schedule(s).

If your original alternative workweek schedule is officially repealed, you could propose a menu of schedule options and allow employees from the same department to select from that menu. With those steps, you would be able to offer a 4 on, 3 off shift, 2 on, 2 off option, etc.

In the meantime, you are not required to compensate temp employees for the difference between the approved alternative workweek schedule and your unapproved schedule for temp employees who have earned overtime wages.

Barring any religious exemption or exigent circumstances, if your temp employees are part of the work unit with the alternative workweek schedule that is in question, your temp employees must work the approved alternative workweek schedule and are not eligible to receive overtime pay unless they work more than 40 hours in a week.

If your temp employees are part of a separate work unit, they are not subject to the approved alternative workweek schedule. Employees who work 8 hours in a day would not be entitled to overtime. Even if they joined the existing employee unit with the approved alternative workweek schedule and they refused to work the full 10 hours, they would still not be entitled to overtime pay. Furthermore, only a handful of states require payment for overtime when employees work more than 8 hours in a single day as opposed to working 40 hours in a single week.

Bottom Line: We’re sorry to say that there ARE compliance issues with your current alternative workweek approach.

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Kathryn CarlsonAsk the HR Expert — August 24, 2017