As local and state governments shift towards a full reopening of public and private work sectors, following an unprecedented year in which remote work became a strategy for dealing with a global pandemic, businesses are currently grappling with how to physically return employees to work. The California legislature is weighing into the mix by proposing two bills to provide employers and employees with more leeway to agree to mutually beneficial “flexible work schedules.”
Assembly Bill 230 (the Workplace Flexibility Act of 2021) and Assembly Bill 1028 (the Telework Flexibility Act of 2021), introduced in February, would provide hourly employees with the right to request flexible work schedules to work up to four 10-hour days per week. With this request, the employer would not have to pay overtime for the 9th and 10th hours worked per day in that schedule. In addition, the Telework Flexibility Act of 2021 would provide remote employees with more flexibility to schedule their meal periods and rest breaks.
Such proposals are not altogether uncommon under California law. Workweek schedules that deviate from the typical five-day workweek (in terms of both hours worked and overtime requirements) can be worked, for example:
- Under collective bargaining agreements negotiated by an employee’s Union, or
- When an employee is part of a work unit wherein an “alternative workweek schedule” (AWS) proposed by the employer was specifically approved through a properly held election.
However, unlike those options, the proposed legislation places significantly more power in the hands of the individual employee to request a flexible work schedule and offer the employer those savings on overtime in exchange. Under such an arrangement, if the employer chooses to approve the request (but they are certainly not required to), an employer is relieved of the obligation to pay overtime unless the employee works more than 10 hours in a day or 40 hours in a workweek.
For now, these bills are still being considered by the State legislature. The bills have been sent to the committee, where they may hear testimony in support of or in opposition to the bill before voting on it. The introduction of these bills will be considered by some as recognition that flexible work arrangements may be more agreeable, and even preferred, to both employers and employees.