Our employees elected an alternative workweek schedule of 4/10 hour days. There are two schedules with different beginning and ending times. One group works a straight 10-hour schedule. The other group works 10.5 hours from the start time to the ending time. Both have a 30-minute meal period. Is the 10.5 hour group entitled to a second meal period at 10 hours?
No, a second meal period is required only when an employee actually works beyond 10 hours. On the 10.5-hour schedule, the employees are taking a 30-minute meal period, resulting in a total of 10 hours worked. Off-duty meal periods are not counted as hours worked.
Of course, on those occasions when an employee actually works more than 10 hours, the second meal period would be required unless the employees waive their second meal period pursuant to Labor Code Section 512 (a).
Regarding what you call a straight 10-hour schedule, the employees are working only 9.5 hours. For example, if the employees appear for work at 7 a.m., take a 30-minute off-duty meal period at 11 a.m., and leave at 5 p.m., the totals hours worked are 9.5 hours.
Alternative Workweek Rules
In addition, the alternative workweek regulations require that employees work the schedule they elected—in this case a full 10-hour day. The rules further address overtime issues.
The following excerpt from Section 3 of the Industrial Welfare Commission (IWC) order clarifies that time-and-one-half is owed when an employee works fewer hours than the agreement established:
“(3) If an employer, whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1-1/2) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee’s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours.”
Alternative workweek schedules are allowed in most of the IWC orders and in Labor Code Section 511.
Be sure to review the IWC order covering your business because the regulations may vary.
Refer to your legal counsel for help establishing alternative workweek schedules.