Alternative Workweek Schedules in California: When They Fail

For most nonexempt employees without a qualifying union contract, a regular 10-hour day without daily overtime requires an alternative workweek schedule adopted by the book. Under Labor Code section 511, an alternative workweek schedule needs a written proposal, a noticed meeting, and a two-thirds secret ballot vote of the affected employees. A schedule that skips a step is void, and hours past eight in a day are owed as overtime. In a class action, the employer has to prove the election was valid.

What is an alternative workweek schedule?

It’s an exception to daily overtime. California normally requires overtime for work past eight hours in a day. One exception, as the Court of Appeal noted in Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308, is an “alternative workweek schedule adopted pursuant to Section 511.”

Labor Code section 511(a) lets employees adopt, on the employer’s proposal, a regular schedule of work “for no longer than 10 hours per day within a 40-hour workweek” without daily overtime. The common versions are four 10-hour days or a 9/80 schedule. The employer can propose one schedule for the whole unit or a menu of options employees choose from.

The exception has limits even when it’s valid. Under section 511(b), employees on a valid schedule still get time and a half for work beyond their regularly scheduled hours, up to 12, and for work over 40 hours in a week. Work over 12 hours, or over eight hours on a day outside the regular schedule, is paid at double time. So a valid schedule shifts where overtime starts. It doesn’t eliminate it.

What does a valid AWS election require?

A specific sequence, set out in the wage orders. Section 511(a) says a proposal “shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit.” The details are in section 3(C) of the applicable wage order. Wage Order 4, section 3(C), is typical.

The proposal has to be a written agreement proposed by the employer. Before the vote, the employer has to give the affected employees a written disclosure of the schedule’s effect on their wages, hours, and benefits, at a meeting “duly noticed, held at least 14 days prior to voting,” according to the wage order. Where at least five percent of the affected employees primarily speak a language other than English, the disclosure has to be in that language too, and it has to be mailed to employees who don’t attend.

The election itself has its own rules. “In order to be valid, the proposed alternative workweek schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds ( 2/3 ) vote of the affected employees in the work unit,” section 3(C)(2) provides. The vote is held during regular working hours at the work site, and the employer pays the costs of conducting it. Employees can’t be required to work the new schedule for at least 30 days after the results are announced.

What happens if one step is missed?

The election can fail. The wage order says it directly: “Failure to comply with this paragraph shall make the election null and void,” according to section 3(C)(3), the paragraph covering the disclosure and meeting. A void election means no valid schedule, and daily overtime applies from the first shift.

Maldonado shows how this plays out in a class action. A plastic bag manufacturer ran its plant on 12-hour shifts and paid each shift as 10 regular hours and two overtime hours, a schedule the opinion calls the “10/2 AWS.” The schedule had been put in place by a prior owner and later re-voted by the new one. The trial court found it wasn’t properly adopted in any of the four periods at issue, according to the opinion.

The defects were the kind that show up in ordinary workplaces. For one period, the opinion says there was no evidence of a written disclosure, a meeting, voting, a 30-day waiting period, or a report to the state. An employee in a later election testified the plant manager told him that if he didn’t agree with the schedule, he could leave. A salaried supervisor voted. And the schedule “went into effect on October 12, 2009, six days after the vote,” according to Maldonado, well short of the 30-day wait.

The trial court entered a judgment of $935,297.40, made up of unpaid overtime, waiting time penalties, wage statement penalties, and interest. The Court of Appeal affirmed the liability findings but cut the damages, as discussed below.

Who has to prove the schedule was valid?

The employer. Maldonado treated the schedule as an exemption from overtime, and exemptions are affirmative defenses. The court wrote that “Thus, Epsilon had the burden to establish the 10/2 AWS was properly adopted,” according to the opinion.

That burden mattered for the oldest period. The employer argued the prior owner had adopted the schedule in the early 1990s and that no one had shown the procedures were skipped. The court rejected the framing: “However, it was not plaintiffs’ burden to establish that Apple failed to follow the procedures; it was Epsilon’s burden to establish that it did.” (Apple was the plant’s prior owner.)

This is the practical problem with old schedules. An election held 10 or 15 years ago, by managers who’ve since left, often leaves no paper behind. The employees didn’t have to prove the vote was defective. The company had to prove it wasn’t, and it couldn’t.

Can an employer fix a defective schedule by re-voting?

Not after the fact. Maldonado’s employer held confirming votes after the schedule was already in use. The court held that “Subsequent attempts (by Apple and Epsilon) to reaffirm the employees’ commitment to the 10/2 AWS after it had been adopted do not meet the requirements of a pre-adoption vote, preceded by written notice and meetings,” according to the opinion.

A new election that follows every step can support the schedule going forward. It won’t cure the overtime owed for the period before it. Section 511(c) adds a constraint on the fix: “An employer shall not reduce an employee’s regular rate of hourly pay as a result of the adoption, repeal, or nullification of an alternative workweek schedule,” according to the statute. An employer can’t lower hourly rates to offset the overtime that a voided schedule now requires.

Employees can also undo a valid schedule. Under section 3(C)(5) of the wage order, a petition from one-third of the affected employees triggers a new secret ballot election, and a two-thirds vote repeals the schedule.

What overtime is owed when a schedule fails?

Daily overtime for every hour past eight, less what was already paid. In Maldonado, employees on 12-hour shifts were owed four overtime hours per shift and had been paid overtime for two. The fight at the damages trial was over the half-hour paid meal break. The trial court refused to deduct it and awarded the overtime premium for two hours per shift.

The Court of Appeal disagreed on that point. It directed the trial court to “reduce the award of overtime damages to provide the overtime premium of 1 hour 45 minutes per shift, rather than 2 hours per shift,” to recalculate the waiting time penalties and interest, and to “eliminate the award for wage statement penalties,” according to Maldonado. The fee award was vacated for reconsideration. The Supreme Court of California later questioned part of Maldonado’s wage statement reasoning in Naranjo v. Spectrum Security Services, Inc. (2022).

The lesson for employers runs both ways. The burden on validity sits with the company, but the employees still have to prove their damages, and the company’s time records are what decide that number. Waiting time penalties can follow unpaid overtime for former employees unless the employer shows a good faith dispute over whether the wages were owed, a topic that is covered in the firm’s post on waiting time penalties. If the schedule paid shift differentials or bonuses, the overtime rate itself may be off too, as the firm’s post on the regular rate of pay explains.

When an overtime claim challenges your schedule

1. Preserve every election record, from the written proposal and meeting notice through the ballots and the report to the state, plus payroll and timekeeping data, the posted schedules, and the managers’ emails and texts.
2. Calendar the response deadline on the demand, PAGA notice, or complaint, and check for an arbitration agreement and an employment practices liability (EPLI) policy with notice terms.
3. Identify who ran the election, who voted, and who supervised the work unit, and stop any action toward the employees who raised the issue that could look like retaliation.
4. Pull the punch data for meal periods and shift lengths, since the time records will drive the damages number even if the schedule fails.
5. Get legal advice before holding a new election, changing pay rates, or talking with employees about the claim.

A new vote can feel like the obvious fix, but timing and wording matter once a claim is pending. Defending schedule challenges is a regular part of California wage and hour defense.

Alternative workweek questions employers ask

Do we have to report the election results to the state?

Yes. Section 511(e) says “The results of any election conducted pursuant to this section shall be reported by an employer to the Division of Labor Standards Enforcement within 30 days after the results are final.” The wage order also calls for a report to the Department of Industrial Relations’ research office within 30 days. Keep proof of what was sent and when.

What if some employees can’t work the longer days?

The employer has to try. Under section 511(d), it must make a reasonable effort to find a schedule of no more than eight hours a day for any eligible voter who can’t work the new hours. It may offer one to employees hired after the vote. A conflict with a religious belief or observance gets the accommodation analysis that applies under FEHA.

Can supervisors or employees outside the unit vote?

They shouldn’t. The vote belongs to the affected employees in the work unit. In Maldonado, a salaried supervisor voted, and the trial court found the employer acted in bad faith by letting employees who weren’t subject to the schedule vote on it.

Is a valid 4/10 schedule safe from overtime claims?

No. Hours beyond the scheduled day, hours over 40 in a week, and work on extra days still earn overtime under section 511(b). Under the wage order, an employer that requires an employee to work fewer hours than scheduled owes overtime for hours over eight that day.

If your company’s schedule is being challenged

If your company has received a demand or lawsuit claiming its alternative workweek schedule is invalid, the election records and the time data usually decide how much of the claim is real. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving unpaid daily overtime under alternative workweek schedules. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statute is Labor Code section 511. The regulation is Industrial Welfare Commission Wage Order 4, Cal. Code Regs., tit. 8, § 11040. The case is Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal.App.5th 1308.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.