New California legislation allows non-exempt employees subject to a properly implemented alternative workweek schedule to work more than eight hours per day without incurring daily overtime. Alternative workweek schedules are arrangements made for employees who prefer working fewer days per week without sacrificing the number of hours worked.

Effective May 21, 2009, Assembly Bill 5 amends California Labor Code §511 to give employers increased flexibility in implementing alternative workweek schedules. The amendment lets employers include a regular schedule of five eight-hour days in a workweek with daily overtime available after eight hours as one of the menu options offered to employees. Employees may now, with their employer's consent, move from one schedule option to another on a weekly basis. The Division of Labor Standards Enforcement has additionally expressed in a recent opinion that under some circumstances, an alternative workweek schedule may be effective for less than a full year, such as during the summer months only.

In order to implement an alternative workweek schedule, an employer must follow proper statutory and regulatory procedures. These procedures include holding a meeting and making required disclosures regarding the proposed schedule and holding a two-thirds vote of all affected employees in a work unit. The revised California Labor Code §511 includes a provision stating that a single employee may qualify as a "work unit" and defines a "work unit" as "a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof," which is consistent with interpretations by the courts and regulations.

California employers should consult legal counsel to ensure that the election process correctly follows all statutory and regulatory procedures and that correct wage orders are utilized.