I have just began working for an adolescent treatment facility. Another employee informed me that the overnight employee's do not receive overtime for the 10-11 hour shifts that we work. He explained that they work 4 ten hour shifts and that they were asked to sign an alternative work week agreement upon starting employement.

My question is this, I am only working part time- 2 ten hour shifts per week, I was not informed of the alternative work week during my interview or during orientation, and have not been asked to sign any agreements. Do they legally have to pay me overtime up until the point where I am formally informed of the alternative work week and an agreement is signed? Also, would the alternative work week apply to me, since I am not working a 40 hour work week(a part time employee)?

I accepted this job because I felt that the overtime compensation made up for the graveyard shift hours and the fact that I am not allowed a formal lunch break.

Alternate work weeks are allowed in California, if the employer complies with the established election criteria. Once an alternate work week has been elected, it affects all employees in the registered group, even ones who are hired after the election and even if they have no knowledge of the election.

It is important to note that the only way that an employer may use the alternate work week is to hold a valid election. The elections must be held by secret ballot, and there are many regulations for conducting them (See any wage order for the regulations.) Once the election has been conducted, it must be reported. You can check the following website to see if your company has reported a valid election: http://www.dir.ca.gov/databases/dlsr/DLSR-AWE.html

If the company is on that list, it does not have to pay you daily overtime until you have worked in excess of the voted upon amount. If they are not on that list, they have either not conducted an election or not reported it yet (must be reported in 30 days). If they didn’t conduct a valid election or refuse to report it, then they owe you the overtime. It does not matter if they make you sign a document. The law is clear that signing a document will not enable them to alter the law. The only way to not pay daily overtime is to be in an exempt operation (certain types of truck driving, etc) or conduct a valid secret election for an alternate work week.

So they are NOT on the list. Now what can I do? :confused:

Once an alternate work week has been elected, it affects all employees in the registered group, even ones who are hired after the election and even if they have no knowledge of the election.

Can you give a bit more information &/or a link mtracy about what that interpretation is based on?
Doesn't an employer have to hold a new election if more than half (in our case virtually all) of the employees in the unit were hired after the election was held?? (We are covered under Wage Order 16.)

Driller brings up a good point which I will clarify. The alternate work week will affect all employees in the covered group, even those hired after the date of the election and even if all of the employees were hired after the date of the election unless a new election is required. A new election is required when 1/3 of the covered employees petition the employer for a new election.

Workers covered by Wage Order 16 (Consutruction, Drilling, Logging and Mining) also have an additional requirement for a new election when the number of people covered by the election increases by 50% (note this is different than 50% of the people being new hires.) I will illustrate this last point. Let us say there is a group of 10 people and they hold a vaild election to use an alternate work week. This alternate work week will be in effect even after some of them quit and others are rehired. Let us say that over the years some of them quit and are replaced by others. Even if all 10 of them eventually quit and are replaced, since there are still only 10 people in the covered group, the election is still valid.

Now, if 5 new people are hired without anyone being fired or quiting, there are 15 people in the covered group. This is 50% higher than the original amount in the group and a new election must be conducted.

This infomation is covered in the relevant Wage Orders. See Section 3(C)(5)-(6) of Order 16. The Order is required to be posted at your jobsite, but you can find it here: http://www.dir.ca.gov/IWC/Wage_orders_January2001/IWCArticle16.html

Thanks mtracy for explaining that.

How about the "regularly scheduled" part of alternative workweeks? For posters not familiar--the DLSE defines alternative workweeks as any regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period. What happens in our company is we usually work 8 hour days. When the need comes up to work 10-hour days our boss puts us on a 4/10 schedule. He claims this is a legit alternative workweek schedule and doesn't need to pay us OT.

The DLSE Enforcement Manual deals with this situtation directly:


56.7.2.7 Regular Schedule. The options language does not allow a situation where the employee may opt to work an alternative workweek or a normal workweek on an irregular basis for that would not meet the criteria of "regularly scheduled".


If an employer is arbitarily switching between a 8/5 and 10/4 work week, it would not be a valid alternate work week, and daily overtime would be due after 8 hours of work in a day for all days worked.

I don't believe that is correct, it either must be alternative workweek for the entire group or not alternative workweek.

In other words, one week 8 hour days, the next week 10 hour days isn't appropriate.

At least, that's how I've always understood it to be.

Thanks for clarifying these things. Much appreciated.

Oh boy. I think the place I am working is in major non-compliance on this. We work 44 hours one week/36 hours the next, with every other Friday off. I am told this was voted on several years ago. I have only been here a few months. I cannot find us listed in the CA database. Also, is this 44/36 schedule even legal? I haven't been able to find anything, anywhere saying it was. Is this something that could have been grandfathered in? I have only recently moved to CA so I am still learning. We are a manufacturer, so I believe we are covered under Wage Order #1. Here I go opening up another can of worms. I seem to be good at that.

Can you provide a few more details about how this 44/36 schedule is broken out? And what the defined workweek is for the employer, or for the group of employees who are on this schedule? And what industry?

Schedule is like this:

Week One Mon-Thurs 7:30-5:00
Friday 7:30-4:00

Week Two Mon-Thurs 7:30-5:00

We are a manufacturer in the electronics industry. Thank you for the assistance.

OK, second time, what is the defined workweek for this group of employees?

Not sure what you mean by "defined workweek". Week starts on Saturday, ends on Friday. Is that what you mean? Sorry, I'm not sure of the terminology, I am not an HR person by training. Just thrown into this, as many accounting people seem to be. Thank you for your patience.

Your employer has to define the 7-consecutive day period that begins on a day/time certain as the "workweek". It is the period on which overtime is based. It's not necessarily the same as YOUR workweek. If you aren't sure, ask your employer.

Official workweek begins at 12:01 a.m. on Saturday and runs till midnight on Friday. Is that what you need to know? Thank you.

Yep, that's what I needed. I'll get back to this post soon.