WHEN YES MEANS NO. OR YES. OR MAYBE?By Robert S. Nelson, Esq.
Nelson Law Group
California has traditionally been ambivalent, if not downright schizophrenic, toward daily overtime. In 1998, the state abolished rules requiring employers to pay overtime for more than eight hours worked in a day, only to turn around and reinstate the rules again in 2000. Understanding that history sometimes helps when trying to comprehend California’s Byzantine rules governing alternative work schedules, which are schedules lasting longer than eight hours a day in which employees are not required to be paid overtime (i.e., “4/10” schedules). Outwardly, the state says that alternative workweeks can be legal, under the right circumstances. In reality, however, it makes alternative work schedules very difficult to implement.
Given this dichotomy, veterinarians should proceed with caution when considering whether and to what extent they want to implement alternative workweeks.
Veterinarians generally like alternative workweeks because they extend the time that their practices can remain open and staffed, while also keeping labor costs relatively stable. While many businesses long for this same balance, it is especially important to veterinary practices given the unpredictable nature of their business (i.e., if a sick animal comes in at 5 p.m., a vet wants to be able to treat it without having to worry about runaway overtime). An informal survey of California veterinary practices found that about 20 percent already have alternative work schedules in place, while more than half said they were either seriously considering implementing an alternative schedule, or had considered such a schedule sometime in the recent past. Those practices that had considered and abandoned the idea invariably attributed their decisions to the hyper-diligence needed to implement alternative work schedules, as well as the risk that the schedules may ultimately be invalidated.
Alternative work schedules will only be legal if employers adhere to a dizzying array of rules and regulations. To begin with, employers must first give employees who will be subject to alternative work schedules the opportunity to vote whether they in fact want the schedules to be implemented. Prior to the votes, employers must first propose, in written agreements, the precise schedules they want to adopt. The agreements can either propose a single, set schedule (e.g., Monday through Thursday, 8 a.m. to 7 p.m. (excluding an hour meal break)), or a menu of different schedules from which the employees can choose. Employers generally can only propose “4/10” (i.e., four days a week, 10 hours per day) or “9/80” (80 hours spread over nine days occurring during a 14-day span; very complex and confusing) schedules. However, healthcare employers (including veterinarians) can propose schedules of 12 hours per day, but only for employees involved with patient care (i.e., not for receptionists, technical support, etc.).
After providing the written proposals, employers must then give employees separate written disclosures explaining the anticipated affects that the schedules will have on wages, work hours and benefits. Employers must also schedule meetings at which the anticipated affects can be discussed. No sooner than 14 days after the meetings, employers can then hold secret ballot elections at which all affected employees can vote whether they in fact want the alternative schedules. At least two thirds of the affected employees (not just the voting employees) must vote in favor of the alternative schedules in order for them to be implemented. Elections must be held during regular work hours, at the employees’ regular work locations.
If votes are successful, employers must then report the vote results (along with other specific information about the elections) to the California Department of Industrial Relations (“DIR”), the agency that oversees the state’s wage-and-hour laws. Employers must also allow for grace periods of at least 30 days before implementing approved alternative schedules. After all these steps are completed, employers must then make sure that their employees adhere to the exact alternative schedules that were proposed and approved. In other words, if a proposed schedule was Monday through Thursday, affected employees cannot be allowed to work any other days. Deviating from an approved schedule may risk invalidating the alternative workweek altogether.
The enforcement arm of the DIR aggressively prosecutes situations where employers regularly deviate from approved alternative work schedules. It is generally believed that the DIR disapproves of alternative work schedules in general. The DIR recently fined at least one California veterinarian thousands of dollars in back pay for employees who were subject to an alternative work schedule that was not precisely followed. So what should veterinarians do? If you do decide to implement an alternative work schedule, be sure to closely follow the required prerequisite steps. Also devise careful policies and procedures designed to prevent deviation from the approved schedules.
Robert S. Nelson is the founder of the Nelson Law Group, a San Bruno, California based law firm specializing in labor and employment matters that relate to veterinary practices. He regularly counsels and assists clients with alternative workweek issues. He can be reached at (415) 689-6590, or [email protected]