This article first appeared in California Special Districts Magazine, March-April issue, in our Ask The Experts section
By Stephanie J. Lowe and Elizabeth T. Arce, Liebert Cassidy Whitmore
For districts that want to move away from the traditional “9-to-5” the 9/80 work schedule is a popular alternative. The 9/80 is a two workweek schedule of eight 9-hour days, one 8-hour day, and one day off. While the 9/80 has its benefits, there are also a number of pitfalls that can inadvertently trigger overtime liability.
Benefit #1 – Employees Get a Day Off
Who doesn’t appreciate a day off? The 9/80 schedule builds in one day off across the two workweek period and contributes to better work/life balance which, in turn, can improve morale. Employees will also spend less time commuting. Additionally, several studies have observed no loss in productivity in a four-day workweek.
Benefit #2 – Extended Service Hours
Since the 9/80 schedule has employees work eight 9-hour days every two weeks, this extends the daily hours employees are available to serve the public and run operations. Extended hours can better accommodate community members and their own work schedules.
Pitfall #1 – Not Designating the Workweek Properly
Although employers are required to designate a defined workweek for non-exempt employees, they often fail to do so. The problem this creates is that employees will end up working 36 hours in the first workweek and 44 hours in the second workweek when the employer uses a default workweek that starts and ends at midnight any day of the week. Thus, the employer will incur 4 hours of overtime liability. To avoid this, districts should designate the workweek to begin 4 hours into the employee’s 8-hour day and designate the day off as the same day of the week in the following week.
Pitfall #2 – Allowing Employees to Switch Their Day Off.
Employers should be cautious of employee requests to change their regular day off because moving it will likely cause the employer to incur overtime liability. For example, switching the “on-Friday” with the “off-Friday” will result in more hours being worked in one of the two workweeks. The best way to avoid this problem is to prohibit employees from changing their day off.
Pitfall #3 – Allowing Employees to Shift Their Hours.
When employees shift their hours or meal breaks on the alternating workday, this can trigger overtime. Because the workweek begins 4 hours into their 8-hour shift on their alternating workday, permitting an employee to work more or less hours before the 4-hour cutoff will result in overtime. For example, if an employee whose workweek starts at noon on Fridays (regular Friday hours are from 8:00 a.m. to 5:00 p.m.) comes to work early at 6:30 a.m. on Friday and works until 3:30 p.m., the employee would incur 1.5 hours of overtime because the hours worked between 6:30 a.m. and noon would be in the first workweek of the 9/80 schedule. Employers can avoid overtime liability by not allowing employees to shift hours on their alternating workday.
About the Authors:
Liebert Cassidy Whitmore Partner Elizabeth T. Arce and Senior Counsel Stephanie J. Lowe provide representation and legal counsel to public entities in employment law matters, with a specialization in wage and hour law. Liz, who serves as a member of the LCW Litigation Executive Committee, has successfully represented public employers in matters ranging from single plaintiff lawsuits to wage and hour class and collective actions. When she is not defending litigation matters, Liz supports LCW clients in auditing employer policies and practices for compliance with wage and hour laws. Stephanie’s practice focuses in large part on wage and hour matters. She regularly supports our public agency
clientele by advising on and auditing wage and hour matters.