Industry Intelligence

Solar & Energy

One missed step in the AWS election retroactively converts every 10-hour day across every affected employee into 2 hours of unpaid daily overtime.

7

Exposure Categories

4

Governing Authorities

4

Defense Strategies

Applicable: Wage Order 16-2001 (On-Site Construction) / Wage Order 4-2001

Structural Vulnerability

Alternative workweek schedule compliance is the primary exposure driver in solar and energy. The DIR election process has four mandatory steps: (1) written disclosure at least 14 days before election, (2) a meeting to discuss the proposed schedule, (3) a secret ballot election with two-thirds approval, and (4) results reported to DIR within 30 days. Missing any single step — even a procedural technicality like late DIR filing — can invalidate the entire AWS retroactively.

The retroactive exposure is enormous. Solar installers routinely work four 10-hour days under a 4/10 AWS. If the AWS is invalidated, every hour beyond 8 in each day becomes unpaid overtime — 2 hours per day, 8 hours per week, across every employee covered by the invalid AWS, for every week the AWS was in effect. For a crew of 30 installers working under an invalid AWS for two years, the overtime exposure alone exceeds $500,000 before PAGA penalties are calculated.

Travel time compounds the problem. Field crews who report to an employer-designated yard, pick up equipment and vehicles, and then drive to remote installation sites have a strong argument that the travel time from yard to site is compensable under Morillion. If the employer does not pay this travel time, every day generates additional overtime exposure — the compensable travel time pushes total daily hours beyond 8 even before the installation work begins.

Exposure Categories

Alternative Workweek Schedule Invalidity

Lab. Code § 511; IWC Wage Orders, § 3(B)

The four-step process is unforgiving. Step 1 requires written disclosure of the proposed schedule's effects on wages, hours, and benefits at least 14 days before the election. Step 2 requires a meeting — not merely a document distribution — to discuss the proposal. Step 3 requires a secret ballot with two-thirds approval of affected employees in the 'work unit.' Step 4 requires filing results with DIR within 30 days. Failure at any step invalidates the AWS retroactively to its inception, converting every alternative schedule workday into a standard 8-hour day with overtime beyond 8.

Defense Strategy

Audit all AWS elections for strict compliance with each step. If deficiencies exist, conduct a new compliant election immediately to stop the bleeding prospectively. For historical exposure, calculate the precise overtime hours generated by the invalid AWS and build the three-scenario model around that data.

Piece-Rate Non-Productive Time

Lab. Code § 226.2

Solar installers paid on piece-rate (per panel installed, per system completed) must receive separate compensation for rest and recovery periods and 'other nonproductive time' — calculated at a regular rate derived from piece-rate earnings. Most legacy payroll systems cannot perform this calculation automatically. The failure to separately identify and compensate non-productive time creates both a wage claim and a derivative wage statement violation.

Defense Strategy

Audit payroll system output for § 226.2 compliance. Ensure rest period compensation is separately calculated and identified on the wage statement. Implement payroll system updates or manual calculation procedures to address the gap.

Full Exposure Profile

AWS compliance and DIR election procedures (four-step statutory process)

Travel time from reporting locations to remote installation sites

Piece-rate non-productive time compensation under § 226.2

Expense reimbursement for personal vehicles, tools, and safety equipment

Heat illness prevention compliance (shade, water, rest, training)

Multi-site scheduling and rest period logistics for field crews

Prevailing wage compliance for public works projects

Governing Authorities

Lab. Code § 511 (AWS election requirements)

Morillion v. Royal Packing (2000) 22 Cal.4th 575

Lab. Code § 226.2 (piece-rate compensation)

Cal/OSHA T8 § 3395 (heat illness prevention)

Defense Strategies

1

Conduct an immediate AWS compliance audit — verify all four steps for every active alternative workweek election. This is the single highest-priority action for any solar/energy employer.

2

Audit travel time practices: distinguish between employer-required yard reporting (compensable travel from yard to site) and voluntary reporting (non-compensable commute). Document the policy and ensure consistent application.

3

Implement § 226.2-compliant payroll procedures for piece-rate workers — separate compensation for rest periods and non-productive time, separately identified on the wage statement.

4

Position for the 15% penalty cap by documenting heat illness prevention training, rest period provision at remote sites, and equipment/vehicle expense reimbursement policies.

Currently Monitoring

DIR enforcement activity related to AWS election procedures in the construction and energy sectors.

Evolving prevailing wage requirements for solar installation on public works projects.

Cal/OSHA heat illness prevention enforcement actions and proposed regulation updates.

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This industry analysis is for informational purposes only and does not constitute legal advice.