Assembly Committee Nixes Flex Work Schedule Bill

The January 10 CalChamber Alert Newsletter reported that a California Chamber of Commerce-supported job creator bill that sought to eliminate the burdensome alternative workweek election process and allow the employee the opportunity to request a workweek schedule addressing the needs of both the employer and employee failed to pass the Assembly Labor and Employment Committee this week. AB 907 (Conway; R-Tulare) would have allowed an employee to voluntarily request a flexible work schedule, with an opportunity to work four 10-hour workdays without the employer incurring overtime.

"We don’t live in a 9-to-5 world, which is why workers need flexible schedules to achieve work-life balance," said Assembly Republican Leader Connie Conway following the vote. "It’s disappointing that the majority party would prefer to maintain the status quo rather than keep up with the changes in workplace needs."

California is one of only three states that require employers to pay daily overtime after eight hours of work and weekly overtime after 40 hours of work.

Even the other two states that impose daily overtime requirements allow the employer and employee to essentially waive the daily eight-hour overtime requirement through a written agreement.

California, however, provides no such common-sense alternative. Rather, California requires employers to navigate through a multi-step process to have employees elect an alternative workweek schedule that, once adopted, must be "regularly" scheduled. This process is filled with potential traps for costly litigation, as one misstep may render the entire alternative workweek schedule invalid and leave the employer on the hook for claims of unpaid overtime wages.

Currently, there are 23,994 alternative workweek schedules reported with the Division of Labor Standards and Enforcement. According to the Employment Development Department’s calculations in 2009, there are approximately 1,347,245 employers in California.

At best, approximately 2% of California employers are utilizing the alternative workweek schedule option. More realistically, however, given that the information in the database is according to work unit instead of employer, it is likely that less than 1% of employers in California are utilizing this process.

AB 907 would have relieved employers, especially smaller employers, from the administrative cost and burden of adopting an alternative workweek schedule. Pursuant to AB 907, at the request of the employee, an employer would be able to implement a flexible work schedule that allows the employee to work up to 10 hours in a day or 40 hours in a week, without the payment of overtime. Employers should be able to negotiate through a written agreement, revocable by either party, the daily/weekly schedule that satisfies the needs of both the employee(s) and the employer.

AB 907 failed to pass Assembly Labor and Employment on January 8 on a party-line vote of 2-5.

Ayes: Gorell (R-Camarillo), Morrell (R-Rancho Cucamonga).

Noes: Alejo (D-Salinas), Chau (D-Alhambra), Gomez (D-Los Angeles), Hernández (D-West Covina), Holden (D-Pasadena).