Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999

© 1999, Elliott Myles, Esq., The Castleman Law Firm

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On January 1, 2000, the provisions of AB 60, the "Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999," become effective. The Act formally adopts the 8-hour workday and 40-hour workweek as a "fundamental protection of working people" for all non-exempt employees who work more than a 6-hour workday/30-hour workweek. See Related AB 60 Table

Under the Act, employees must be compensated at time-and-a-half or double time for any time worked beyond an 8-hour day or 40-hour week, either on a daily basis or a weekly basis. However, in limited circumstances, the Act permits employers to maintain or adopt alternative workweek schedules of up to 10 hours a day in a 40-hour workweek. Under an alternative workweek schedule, the employee is entitled to overtime where he or she works more than the regularly scheduled hours under the agreement or more than 40 hours in a workweek.

The Act defines "day" and "workday" as any consecutive 24-hour period commencing at the same time each calendar day. A "week" or "workweek" is any 7 consecutive 24-hour days, or fixed and regularly recurring period of 168 hours. An "alternative workweek schedule" is any regularly scheduled workweek requiring an employee to work more than 8 hours in a 24-hour period.

1. Regular Workweek Schedules

Non-exempt employees working more than a 8-hour workday and 30-hour workweek are entitled to overtime compensation as follows:

• Time-and-a-half for each hour over 8 hours worked in one workday.

• Time-and-a-half for each hour over 40 hours worked in one workweek.

• Double time for each hour over 12 hours worked in one workday.

• Time-and-a-half for the first 8 hours worked on the 7^th day of a workweek.

• Double time for each hour over 8 hours worked on the 7^th day of a workweek.

An employer must keep track of both the daily overtime total and the weekly overtime total for each employee. The employee is entitled to payment of the greater of either the daily overtime total or the weekly overtime total, but not both.

For example, an employee on a regular workweek of five 8-hour days works the following schedule:

In Week 1, the employee's daily overtime total is 4 hours, and his or her weekly overtime total is 8 hours. Under the Act, the employee is entitled to payment of 8 hours of overtime at time-and-a-half.

In Week 2, the employee's daily overtime total is 4 hours, and his or her weekly overtime total is 0 hours. The employee is therefore entitled to payment of 4 hours of overtime at time-and-a-half.

In Week 3, both the daily and weekly overtime totals are 10 hours. Accordingly, the employee is entitled to payment of 10 hours of overtime at time-and-a-half.

The Seventh Day Rule and Problem: The Act states that for work on"any seventh day of a workweek", the employee is entitled to time-and-a-half for the first 8 hours and double time for any hours worked after that. It is not clear if this rule applies to any employee who happens to work on the seventh day of a workweek or to an employee who works on the seventh day after working six consecutive days in a row. Informally, the Industrial Welfare Commission ("IWC") has indicated that the word "consecutive" should be read into the Act. Therefore, the "Seventh Day" rule would apply only after an employee has already worked six days in a row.

2. Alternative Workweek Schedule

If an employer, other than a health care employer, currently has an alternative workweek schedule in place, the employer may maintain the schedule, if the schedule:

• either(a) became effective before 1998, (b) was adopted by a 2/3 vote of the affected employees, and (c) adopts a workday of no more than 10 hours; or

• (a) became effective before July 1, 1999, (b) adopts a workday of no more than 10 hours, and (c) the employee requests in writing that the schedule be maintained

All other alternative workweek schedules are void. However, the Act permits an employer to adopt an alternative workweek schedule under the following procedure:

• The schedule authorizes straight time work for no longer than 10 hours per day within a 40-hour workweek;

• The schedule is approved in a secret ballot by at least two-thirds of the "affected employees in a work unit";

• The regular rate of pay of affected employees is not affected by adoption of the schedule;

• The employer must make a reasonable effort to provide a 8-hour/40-hour schedule for affected employees (a) who cannot work the alternative workweek schedule, (b) who are hired after the schedule is adopted, and (c) who cannot work the alternative workweek schedule on religious grounds; and

• The results of the secret election are reported to the Division of Labor Statistics and Research within 30 days of the results becoming final.

Timing in the adoption of an alternative workweek schedule may raise some issues. The Act provides that affected employees may repeal an alternative workweek schedule that is in effect as of January 1, 2000, and requires the IWC to adopt regulations regarding alternative workweek schedules by July 1, 2000. Accordingly, an alternative workweek schedule adopted before January 1, 2000, may run the risk of either being repealed by the employees, or being held invalid under the July 1, 2000 orders. However, informally, the IWC has indicated that a 10-hour workday/40-hour workweek alternative workweek schedule will be acceptable under the new regulation.

Under an alternative workweek schedule, a non-exempt employee is entitled to overtime compensation as follows:

• Time-and-a-half for each hour over the regularly scheduled hours established by the alternative workweek agreement and for each hour over 40 hours per workweek.

• Double time for each hour over 12 hours in one workday.

• Double time for each hour over 8 hours work on days other than the regularly scheduled workdays.

For example, assume that an employee under an alternative workweek schedule of 10-hour days, Monday, Wednesday and Friday, works the following hours:

In Week 1, the employee is entitled to 10 hours of overtime for working on Tuesday, 8 hours at time-and-a-half and 2 hours at double time. In Week 2, the employee is entitled to 13 hours of overtime at time-and-a-half. In Week 2, the employee is entitled to 5 hours of overtime, 4 hours at time-and-a-half and 1 hour at double time.

3. Make-Up Time

If an employee loses work time as a result of a personal obligation other than paid hours off, the employee may make up that lost work time at straight time pay only under the following circumstances:

• The work time is lost as a result of a personal obligation of the employee;

• The make up time is performed in the same week in which the time was lost;

• The employee may not work more than 11 hours in one workday;

• The employee may not work more than 40 hours in one workweek;

• The employee has submitted a written request to make up work time lost; and

• The employer approves the request.

The Act appears to allow the employer's approval to be orally or in writing. An employer is prohibited by the Act from encouraging or soliciting an employee to make up time lost.

To demonstrate the interaction between make up time and overtime, assume that an employee who works a regular 8-hour/40-hour schedule, works the following hours:

In Week 1, if the employee has requested make up time in writing, he or she will be paid straight time for the first 3 additional hours he or she worked on Thursday, and time-and-a-half for the last hour. However, if the employee has not requested make up time in writing or if the employer has not approved the employee's request for make-up time, the employee will be paid time-and-a-half for all 4 additional hours on Thursday, despite the fact that he or she did not work over 40 hours during the entire week.

In Week 2, if the employee has requested make up time in writing, he or she may be paid straight time for the 4 additional hours he worked on Tuesday, Wednesday and Friday. In the absence of a request or approval, these 4 additional hours would be overtime. Additionally, if, under this example, on Friday the employee was asked to work overtime by the employer without reference to the make-up time request, then that one additional hour should also be compensated as overtime.

The make up time rules apply to both regular and alternative workweek schedules.

4. Exempt Employees

The Act makes void certain 1998 orders of the Industrial Welfare Commission which define what classes of employees are exempt from overtime requirements. In place of these orders, the Act reinstates the IWC's earlier orders and requires the IWC to adopt new orders by July 1, 2000.

Currently the"white collar" exemption for executive, administrative and professional employees is governed by IWC Order 4-89 as amended in 1993. However, under the Act, the white collar exemption will extend only to employees under the following circumstances:

• More than one-half of the employee's work time must be devoted to duties that meet the exemption, i.e. professional, administrative or executive duties; and

• The employee's monthly salary is equivalent to two times the state minimum wage for full time employment. The current state minimum wage for full time employment is $5.75 per hour or $23,920 per year.

Under the prior law, construction workers were exempt from the pre-1998 and the 1998 overtime requirements. This exemption was not continued under the Act. Therefore, it appears that construction workers will be entitled to overtime pay under the Act.

The Act also changed or affected other exemptions, such as stable hands in the horse racing industry and health care industry workers. These exemptions will be addressed in future Wage Orders by the Industrial Welfare Commission.

5. Meal Times

All employees, exempt and non-exempt, are entitled to meal periods. An employee who works more than 5 hours in a workday is entitled to one 30-minute meal period. The employee may waive the meal period if he or she does not work more than 6 hours in a workday.

An employee who works more than 10 hours in a workday is entitled to a second 30-minute meal period. The employee may waive this second meal period if (1) the employee does not work more than 12 hours; (2) the waiver is in writing; and (3) the employee did not waive the first meal period of the day.

6. Commuting Times

Generally, time spent by the employee commuting to and from the first or last place at which the employee is required to report to work is not counted as work time. The Act confuses this general rule by stating that commute time in a company owned or subsidized rideshare vehicle is not counted as work time. Presumably, all other commute time is also not counted as work time.

© 1999 by Elliott A. Myles, Esq.

See Related AB 60 Table

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