California Supreme Court to Review Section 203 Waiting Time Penalties

The statute of limitations for a penalty is usually one year under California law. But, Labor Code Section 203 says that the statute of limitations for "waiting time penalties" is the same as the limitations period for the underlying wage claim. So, if the underlying wage claim is three years (such as unpaid overtime), then the statute of limitations for late payment of those wages at termination is also three years.

But, what happens if the underlying wages are paid already and an employee just wants to recover penalties in a civil lawsuit? There IS no underlying claim for wages in that case. So, the court of appeal reasoned in Pineda v. Bank of Am., that the one-year statute of limitations should apply in cases where there is no accompanying claim for unpaid wages.

The court in Pineda also clarified that the unfair competition law's four year statute does not apply to waiting time penalties, since the UCL ordinarily only applies to "restitution" of the plaintiff's property, and waiting time penalties are not the employee's property.

The California Supreme Court just accepted review of Pineda on both issues discussed above. The docket is here. We posted about the court of appeal's opinion here.

Ninth Circuit Asks CA Supremes for Guidance on Wage and Hour

The Ninth Circuit has before it three cases involving pharmaceutical sales representatives. These folks visit with doctors and give them information on medications. The Ninth Circuit wants to know if these employees count as "outside salespersons" under California law. So, they asked the California Supreme Court for an opinion:

1. The Industrial Welfare Commission’s Wage Orders 1-2001 and 4-2001 define “outside salesperson” to mean “any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.” 8 Cal. Code Regs., tit. 8, §§ 11010, subd. 2(J); 11040, subd. 2(M). Does a pharmaceutical sales representative (PSR) qualify as an “outside salesperson” under this definition, if the PSR spends more than half the working time away from the employer’s place of business and personally interacts with doctors and hospitals on behalf of drug companies for the purpose of increasing individual doctors’ prescriptions of specific drugs?

If the sales representatives don't qualify as outside salespersons, because they don't take orders or actually sell the medications, the court wants to know if they qualify as "administrative" employees:

2. In the alternative, Wage Order 4-2001 defines a person employed in an
administrative capacity as a person whose duties and responsibilities involve (among other things) “[t]he performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his employer’s customers” and “[w]ho customarily and regularly exercises discretion and independent judgment.” Cal. Code Regs., tit. 8 § 11040, subd. 1(A)(2)(a)(I), 1(A)(2)(b). Is a PSR, as described above, involved in duties and responsibilities that meet these requirements

The Ninth Circuit seeks guidance on the administrative test because California case law is sparse on what it means to "exercise discretion and independent judgment" for the administrative exemption, and whether the PSRs are involved in "office or non-manual work directly related ot management policies or general business operations" of Bayer's customers. The court appears to believe that California law on outside salespersons differs from the federal test under the FLSA such that reliance on FLSA cases would be of "limited" assistance.

The Supreme Court does not have to answer the questions. If the Court chooses not to, then the case will return to the Ninth Circuit for a prediction on how the Supreme Court would rule. Otherwise, this case could provide needed guidance in this area of wage and hour law.

The case is D'Este v. Bayer Corporation and the opinion/request for answers is here.

California Supreme Court Takes Tips

(Or at least they accept tip pooling cases for review. ) What's tip pooling? We blogged about it here and wrote an article here. Yeah, we're on it.

Who knew tip pooling was the new meal break? There have been about four recent appellate decisions on tip pools in recent months. The Supreme Court decided to have its say, accepting review in Lu v. Hawaiian Gardens. We'll see if they grant and hold the rest of them or leave one on the books for guidance to the bar while the Lu review is pending.

DGV

Court of Appeal: Release Bars Employee's Class Action

Watkins and Brown sued Wachovia Bank for mis-classification as exempt, as well as for individual wrongful termination and wage claims. There was a lot of litigation over arbitration, discovery and the like.

Brown ultimately settled her claims and signed a release, which covered all claims, including disputed claims for overtime. The trial court granted summary judgment against her, holding she no longer could participate in the class action. On the same day, the court denied the plaintiffs' motion for class certification of the wage claims.

Watkins settled her claims and signed a release as well. However, she purported to reserve the right to press any "class claims," and to receive an enhanced payment if the class claims were successful. She also reserved the right to appeal the denial of class certification.

On appeal, Brown argued that her release did not encompass claims for unpaid wages and that she was free to have signed the general release, but still maintain her wage claim. Relying on the recent decision in Chindarah v. Pick Up Stix, covered here, the court of appeal held that a release may properly include disputed claims for wages.

Then, the court turned to Watkins. The court held that Watkins could not preserve her right to appeal since she had signed a general release. Because parties cannot confer appellate jurisdiction and a court of appeal will not issue an opinion about a moot claim, the court dismissed the appeal. That left no appeal of the denial of class certification and, maybe, some annoyed absent class members?

The court of appeal was careful to distinguish what are called "pick off" cases. In those cases, the defendant pays a class representative all that s/he claims is due and then seeks dismissal of the action against that plaintiff. The plaintiff can stay in the case if s/he has an adequate economic interest in remaining in the case, such as the interest in attorneys' fees. But the court squarely held that a plaintiff accepting a voluntary settlement of all claims is not picked off and, therefore, not entitled to maintain a class action:

We believe that it is illogical to import the law governing "pick off" cases into the context of a voluntary settlement. Often, a plaintiff brings an action as a class action precisely because the attorney‟s fees involved in bringing the action individually would exceed the value of the any judgment the plaintiff could obtain individually. (Roper, supra, 445 U.S. at p. 338, fn. 9.) In such a situation, a "pick off" settlement, which gives the plaintiff only the relatively small amount sought as damages, may be inadequate to cover the substantial attorney‟s fees incurred in pursuing the litigation. Thus, the plaintiff who has been involuntarily picked off has not obtained satisfactory
relief, and is therefore permitted to continue pursuing the class litigation
until complete relief is received. This conclusion is supported by policy considerations which seek to prevent a defendant from avoiding class liability by picking off individual plaintiffs.

This is to be distinguished from the case of a voluntarily settling plaintiff. In such a case, the plaintiff has accepted an amount the plaintiff believes is sufficient to make the plaintiff whole. By voluntarily settling, the plaintiff has agreed to accept the offered sum in full satisfaction of the plaintiff‟s claim against the defendant. There are no public policy interests implicated by a settlement voluntarily accepted.

* * *

Applied to this case, it is apparent that Watkins‟s appeal must be dismissed. She has voluntarily released her wage claim against Wachovia in exchange for a $51,000 payment. While she attempted to reserve her right to pursue her "class claim," her "class claim" is simply a procedural device by which she pursued her substantive claim for overtime wages. Having settled her substantive claim, the class claim disappears, and her appeal of the denial of class certification must be dismissed. Watkins cannot salvage her right to appeal by asserting an economic interest in class certification in terms of a right to shift her attorney‟s fees to the class, if successful. If the class obtains a judgment or settlement, such recovery would belong to the class. Having voluntarily settled, she is, by her own choice, no longer a member of the class and cannot share in any such recovery.

The opinion is Watkins v. Wachovia Corporation and the opinion is here.

Alert the Media! Arbitration Agreement Enforced

As stated by the Court of Appeal,

The arbitration provision, contained in a separate paragraph initialed by Roman, provided, "I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution[1] which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written."

So, the first thing that jumps to mind is that a court would say it wasn't "mutual," in that it does not say that the Company will submit all disputes to arbitration. Forgive me my cynicism, but the courts seem to find any way possible to deny enforcement of these puppies.

Not this time. The court determined that there was no one-sidedness and that both parties would have to arbitrate all claims. The court had an interesting discussion of canons of construction of contracts contained in the Civil Code supporting enforceability.

The plaintiff also argued that the employer's propounding some paper discovery and even filing a motion to compel the plaintiff's deposition was a waiver. But no:

Although Roman incurred litigation expenses in serving and filing objections to
discovery requests and opposing the demurrer and motion to compel her deposition, those expenses are insufficient, by themselves, to support a finding of waiver: "[W]aiver does not occur by mere participation in litigation"‟ if there has been no judicial litigation of the merits of arbitrable issues" and no prejudice. (Saint Agnes, supra, 31 Cal.4th at p. 1203.) "Because merely participating in litigation, by itself, does not result in a waiver, courts will not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses." (Ibid.; see also Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1197 [expense of responding to motions or other preliminary pleadings is not type of prejudice that bars later petition to compel arbitration].) The trial court did not err in impliedly rejecting Roman‟s waiver argument.

So, there you have it, an enforceable arbitration agreement. Take a picture. The case is Roman v. Superior Court (Flo-Kem), and the opinion is here.

Court of Appeal: No Privacy on Myspace

Myspace, Facebook, Linkedin, etc. are fertile sources of information about employees and job applicants. The phenomenon of otherwise private individuals airing out their grievances, sharing personal information, etc. continues unabated. The phenomenon of the same individuals' shock and surprise that people actually read their stuff and hold it against them continues as well.

In a non-employment matter, the Court of Appeal addressed whether an essay on myspace was private such that republishing it in a newspaper without the author's permission constituted an invasion of privacy. Umm no.

Moreno was from the small town of Coalinga. After she left town, she wrote an essay about her disdain for her hometown. She neglected to consider that folks who remained in Coalinga might get offended. Her principal forwarded the posting to the local newspaper, which published it as a Letter to the Editor. And of course, although Moreno's last name is not on her myspace page, the principal helpfully supplied it.

Now Moreno also forgot that her family still lived in Coalinga, and operated a small business there. The fans of Coalinga were miffed by Moreno's letter, and drove the family out of business and out of town. She chose to sue the newspaper and principal rather than herself. No word whether her family sued her.

The Court of Appeal, upholding the trial court, held that when you post on myspace, it's not "private." As such there is no invasion of "privacy" when you use the posted information or disclose it to others. Without a private fact, there is no tort of invasion of privacy.

Interestingly, the Court of Appeal also held, albeit in an unpublished portion of the decision, that Ms. Moreno could proceed against the defendants for intentional infliction of emotional distress, possibly because of the fact that the principal intentionally supplied the posting to the newspaper out of spite? No clue. Simply reading the information and relying on it on the job may or may not supply the requisite "outrageous conduct" required for IIED. My bet is" not."

So, at least based on this case, if you put your private information out on the INtRaw3Bs, your employer is not invading your privacy by reading it. The case is Moreno v. Hanford Sentinel and the opinion is here.

DGV

Another I-9 Reminder

All of you well-educated, information-saturated folks know the new I-9 Form is effective 4/3, right? OK, then.

This one has the 6/30/09 expiration date, just like the old one. But it also has the critical 2/2/09 revision date (visible in the lower right-hand corner of the form.) Looks like you'll have to replace these new forms, too. (The expiration date is near! Alert the media!) So, you can look forward to still more newsletters and blogs nagging you about this critical issue facing employers. If you need one of these new forms, find it here.

U.S. Supreme Court: Union May Agree to Arbitration of Age Discrimination Claims

In New York City, there is a multi-employer association of building management that negotiates with a large union over building workers' wages, hours and other terms of employment. The union contract provided for arbitration of discrimination claims as follows:

NO DISCRIMINATION. There shall be no discrimination against any present or
future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to,claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations.Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

So, this is a clear agreement to arbitrate. But can a union agree with an employer that individuals' claims must be arbitrated, even though the individuals have not personally agreed to do so?

Yep. The Court decided, 5-4, that the arbitration clause was fully enforceable. To get there, the majority decided two issues. First, the Court noted that unions and employers have broad discretion to agree on terms to be included in collective bargaining agreements. Unions are the employees' designated bargaining representatives and may bargain away rights (such as to sue in lieu of arbitration) in exchange for other concessions by management.

As a result, the only way the above contractual provision could be invalid was if the ADEA prohibited mandatory arbitration of discrimination claims. But the Court already had decided that the ADEA contains nothing precluding mandatory arbitration. Hence, the Court upheld the language in the CBA:

Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age discrimination claims at issue in this appeal.

The Court also refused to rule that mandatory arbitration was a waiver of substantive rights without the employees' consent. The Court made clear it does not consider arbitration in lieu of court to be a substantive change, but rather merely a change of forum.

Four justices dissented in two opinions, arguing that prior precedent precluded the majority's result. Justice Souter admitted the majority's conclusion "at least could be considered" if it weren't for precedent that, in the dissent's view, should control the question.

Anyway, this is all very interesting to students of stare decisis and Supreme Court watchers. But for you, gentle reader, all that matters is that Union contracts can require mandatory arbitration of discrimination claims, if the clause in the contract is "clear and unmistakable."

What also matters is that Congress is moving to ban arbitration of employment discrimination lawsuits, this time with a clear Democratic majority and a Democratic president. So, the odds of this case surviving Congressional action are much lower than they were a few years ago.

The opinion is 14 PENN PLAZA LLC v. PYETT and the opinion is here.

U.S. Supreme Court Upholds Idaho Law Re Union Political Activities Checkoff

I know I'm posting late on this, but I have a strong need to have full coverage of the U.S. Supreme Court's employment law opinions, even the ERISA cases. I hope I didn't inconvenience my devoted followers, and the copycats who don't read the advance sheets themselves .... (Hi!)

This one is a labor / First Amendment crossover. A union claimed Idaho law, prohibiting deductions from employees' pay for union political action funds, is unconstitutional in violation of the First Amendment. The Court disagreed and upheld Idaho law.

Here's the issue and the Court's resolution, as framed by the Court itself:

Under Idaho law, a public employee may elect to have a portion of his wages
deducted by his employer and remitted to his union to pay union dues. He may not, however, choose to have an amount deducted and remitted to the union’s political action committee, because Idaho law prohibits payroll deductions for political activities. A group of unions representing Idaho public employees challenged this limitation. They conceded that the limitation was valid as applied at the state level, but argued that it violated their First Amendment rights when applied to county, municipal, school district, and other local public employers.

We do not agree. The First Amendment prohibits government from “abridging the freedom of speech”; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Such a decision is reasonable in light of the State’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity. That interest extends to government at the local as well as state level, and nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities.

So, there you have it. The case is Ysursa v. Pocatello Ed. Assn. and the opinion is here.

Another Court of Appeal Decision on Tip Pooling

Did lawyers file a whole bunch of class actions on tip pooling at about the same time a year or two ago? Apparently so. Several judicial opinions have now emerged. They're not good for the plaintiffs.

We recently posted about Budrow v. Dave & Buster's here. There, the court decided that a restaurant's requirement that cocktail waitrons tip out a bartender was lawful.
Now, in Etheridge v. Reins International California, Inc. opinion here, the court of appeal reached the same conclusion, albeit with a slightly different formulation. Tip pooling, the court held, is fine when the tips are doled out to employees in the "chain of service." It is still forbidden to involve managers / supervisors in tip pools. But the bussers, bar backs, and hosts can breathe again.

Another Arbitration Agreement Bites the Crust

er... Dust, too.

Western Pizza owns some Domino's franchises. Their arbitration agreement had a class action waiver (illegal). It also had an arbitration selection procedure specifying a certain "dispute resolution service" that had only one arbitrator employed. So, that kind of took the surprise out of who would conduct the arbitration. The court struck down the arbitration agreement as unconscionable. Not a surprise given the current state of arbitration case law.

Interestingly, though, the court of appeal held that the company's "small claims" procedure, permitting relaxed discovery, evidence, and hearing procedures for claims worth less than $50,000. The court noted that such things are normal in arbitration anyway. Also, the court did not find unconscionable the agreement's silence on discovery procedures and no requirement of a written award, holding these were "implied" in the agreement under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83.

The case is Sanchez v. Western Pizza Enterprises, Inc. and the opinion is here.

Court of Appeal Holds Statements Regarding Termination Were Not Defamatory "Per Se"

Slander per se means that a false statement is actionable without proof of actual damages. In California, the law defines the types of slander that count as "per se," which include a statement that:

[¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [¶] 4. Imputes to him impotence or a want of chastity . . .

Mike Regalia was a senior executive. When he was fired, the senior management said that he demanded a "finders fee" or "commission" on a sale without a justification, and that people would not work for him and had threatened to leave. He sued for, among other things, defamation. A jury decided he had been slandered and awarded him $750,000 for damage to his reputation without proof of actual economic loss.

The Court of Appeal disagreed. It is the court's job to decide if a statement is slanderous "per se" or if proof of damages is required (called slander per quod). Here's the court's analysis:

A person can make a claim for money that is rejected as not being justified, and still not be viewed as having committed an act that reflects negatively on that person. Thus a statement about such a claim does not necessarily directly injure him in his profession, trade or business (Correia v. Santos, supra, 191 Cal.App.2d at p. 852) so as to fit within subdivision (3) of Civil Code section 46. (See Gang v. Hughes (9th Cir. 1954) 218 F.2d 432 [alleged statements that a plaintiff‟s attorney refused to settle a case until he was paid and that he was paid because he demanded immediate payment not slander or libel per se].) Likewise, the statement that Regalia was fired because other employees would not work for him and would leave if he remained employed does not, on its face, clearly fall within subdivision (3) of Civil Code section 46. That one or more employees do not want to work for someone, without more, again, does not necessarily reflect adversely on the person. The employee or employees might not want to work for a person because of the person‟s work ethic or rectitude, or legitimate business policies.

Managers have the right to explain to employees why they have discharged someone. There are good business reasons to do so, such as to inform employees what performance standards govern employment. If statements such as the above were actionable as slander per se, no employer would ever explain why someone was no longer employed unless it wished to risk liability without proof of damages. Employees, on the other hand, are protected from false statements if they are actually injured. So, the court struck a reasonable balance here it seems to me.

This case, however, reinforces the need to be factual when explaining someone's departure. Had they called the ex-employee a "thief" or an "incompetent" manager, that might have been a different story. And neutral references are still the safest policy.

The case is The Nethercutt Collection v. Regalia and the opinion is here.

New COBRA Notices Available

Employers covered by COBRA have to comply with the new COBRA requirements included in the "ARRA" stimulus bill. We wrote an article about this here, and we posted here.

The US Department of Labor has issued model notices to aid compliance. Those are here.

DGV

California FEHC Compares ADA, ADAAA and FEHA

The California Fair Employment and Housing Commission issued a handy chart comparing the original Americans with Disabilities Act, the 2008 amendments (ADAAA), and the Fair Employment and Housing Act's coverage of individuals with disabilities. Here is the chart.

California FEHC Compares New FMLA Regulations with CFRA/PDL

The California Fair Employment and Housing Commission issued a helpful comparison chart covering the new FMLA regulations and their effect on California's Family Rights Act and Pregnancy Disability Leave law. Here it is.

Court of Appeal Clarifies California's Tip Pooling Law

If you have worked in a restaurant, then you know. Most restaurants require waitrons (servers) to "tip out" busboys, bartenders, runners, hosts, and/or others involved in the chain of service. If you gain the reputation for stiffing the busboy, bartender, etc. (under-tipping), you will be punished by no water, wrong drink orders, forgotten bread for your table, etc. So, smart wait staff tips out correctly.
In California, though, there is a statute addressing the practice of "tip pooling." The primary purpose of the law is to prevent management from taking a dip into the tip pool, as it were.
Some folks believe that tips by law are retained only by the server who collects it, or who engages in "direct table service."
The Court of Appeal put that interpretation to rest in Budrow v. Dave and Buster's. There, a cocktail waiter objected to tipping out the bartender. No wonder he lasted a month, or three months as he argued.
Anyway, the opinion is here. I'll bet you some side work that the Justices themselves or the court staff pulled a few doubles in their day.

GINA Regulations Coming

The EEOC has proposed regulations implementing and interpreting the Genetic Information Nondiscrimination Act of 2008 (GINA). The draft covers definitions of terms used in the law, what constitutes discrimination, how to protect genetic information in employers' possession, and MORE!

The EEOC is inviting the public to comment on the proposed regulations. If you want to access through the EEOC's own website, it's not posted as of this writing. But it will appear here. As of now, you can view the document here.

Thanks to Ross Runkel for reporting this before it happened.

DGV

Court of Appeal Upholds Release of Overtime Claims

Labor Code section 206.5 invalidates releases of wage claims. But when there is a bona fide dispute over whether wages are due, releases are valid. That's what the court of appeal held in Chindarah v. Pick Up Stix.

This was an overtime class action that went to mediation but did not settle. The employer did an "end run" and settled out about 200 employees with individual releases. Employees challenged the validity of the releases under Labor Code section 206.5. But the court of appeal, agreeing with the trial court, held:

The releases here settled a dispute over whether Stix had violated wage and hour laws in the past; they did not purport to exonerate it from future violations. Neither did the releases condition the payment of wages concededly due on their executions. The trial court correctly found the releases barred the Chindarah plaintiffs from proceeding with the lawsuit against Stix.

If this case is not taken up by the Supreme Court for review, it will clarify a longstanding unresolved issue in California law regarding when settlements of wage claims will be enforced.
Employers will be able to settle claims involving uncertain liability, such as for certain meal period claims, or misclassification issues when the factual issues are in dispute.

Read the opinion here.

California Supreme Court Addresses State Employees' Whistleblower Protections

Before a state employee can bring suit under the California Whistleblower law, he or she must seek relief before the State Personnel Board. When the SPB issues "findings," or even when the SPB fails to do so in the time allowed,the law says that the employee may sue in Superior Court. But the court of appeal held that when, as in the present case, an employee receives adverse findings from the SPB, the employee must seek to overturn those findings before going to court.

The Supreme Court reversed that decision, 7-0. The high court held that an employee may proceed to court when the SPB issues or fails to issue findings within the prescribed time, and the employee need not seek a writ or a hearing before an administrative law judge first.

The case is State Bd. of Chiropractic v. Superior Court and the opinion is here.

California Amends Alternative Workweek Law

As part of California's recent budget compromise, the Legislature made welcome revisions / clarifications to the law governing "alternative workweek arrangements." These arrangements are the authorized exemptions to "daily overtime" law.

The bill, AB 5, amends Labor Code section 511. Presumably, the DLSE will revise its manual and the IWC will issue revised wage orders.

First, the law defines what counts as a "work unit" for having the vote for the alternative workweek arrangement:

For purposes of this section, “work unit” includes a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this section is met.

The new law also expressly allows employers to give employees the right to vote on a "menu of options" that includes not only "alternative workweek" schedules (such as 4/10 hour days) but also an eight hour per day option. That will likely result in a lot more votes for passage.

The law also permits employees to move from one option to another weekly. That will give employees the option of working 4/10 one week and then 5/8 the next week if the employer consents.

Here is the statute.

DGV