Q&A: Everything You Need to Know About California Split Shift Laws
Over the last decade, California employers have witnessed a state-wide increase in wage-and-hour lawsuits filed in state and federal courts. Employers’ failure to pay split-shift premiums is often alleged as a cause of action. This post is written in a Q&A form to provide employers and employees with brief guidelines on how California split-shift law works. Keep in mind that these rules apply only to hourly non-exempt employees.
What are split shifts?
Industrial Welfare Commission Wage Orders define “split shift” as a work schedule which is interrupted by non-paid non-working periods established by the employer, other than “bona fide” rest or meal periods.
Split shifts are typical in many industries. For example, in the food and beverage industry, some restaurants require employees to work both lunch and dinner on a single workday. However, because business hours during the afternoon are slow, the employees are required to take an unpaid break. This type of schedule clearly falls under the definition of a split shift.
My employer requires me to take one 1-hour unpaid meal break in the middle of my workday. Is this a split shift?
It is likely that such break constitutes a “bona fide” meal break rather than a split shift. In its 12/11/2002 Opinion Letter “Hours Worked-Split Shift”, the Division of Labor Standards Enforcement (“DLSE”) has taken the position that any break in excesses of one hour should be treated as a split shift. Therefore, the answer to this question is likely NO because such break is no longer than an hour.
Because I cannot work a full day, I requested my employer to give me a 2-hour break between morning and evening work hours. Am I entitled to a split-shift premium?
No. Employers are not required to pay a split-shift premium if it is an employee who requests the interruption in his or her work schedule or time off to attend personal matters. Because this non-paid non-working period was not established by the employer,it is not a split shift within the meaning of the wage order. For example, in one case, the Court of Appeals held that a waitress was not entitled to a split-shift premium because during a hiring process she signed an affidavit stating that her services were available only during lunch and dinner business hours and that she had family obligations that prevented her from working during the afternoon hours. The court found that her affidavit constituted a waiver of split-shift premiums. (Leighton v. Old Heidelberg, Ltd., 219 Cal. App. 3d 1062 (Cal. App. 2d Dist. 1990))
Does my employer have to pay me extra if I work split shifts?
It depends on your hourly rate. If you are paid at a minimum wage rate, then the answer is yes, your employer must pay you an extra hour at a minimum wage rate. Specifically, under applicable Wage Orders, section 4(c), “when an employee works a split shift, one hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment.”
Example 1. If your workday consists of two shifts: (1) 9AM-12PM and (2) 4PM-9PM and you earn only the minimum wage, your employer will have to pay one additional hour. Given that CA’s 2013 minimum wage rate is $8 per hour, in this example, the employee would be entitled to $72 (8 hours x $8 plus $8 as a split shift premium.)
However, if you earn more than minimum wage, it is likely that you are not entitled to a split shift premium, or only partially. ( see next section)
My hourly rate is more than minimum wage and I often work split shifts. However, my boss tells me that I am not entitled to a split-shift premium. Is he correct?
It is likely that your boss is correct. If you are paid a total amount greater than the minimum wage for all hours worked during your split shift plus one additional hour, then you are not entitled to split shift premiums. To figure out whether you are owed any split-shift premiums, compare the following two numbers: (1) your total pay at your regular rate for the day; and (2) the minimum wage multiplied by number of hours worked plus one hour. If your (1) is greater than (2), then you are not entitled to any split-shift premiums. However, if (2) is greater than (1) than the difference between two numbers is your split-shift premium.
Example 2. Your workday consists of two shifts: (1) 9AM-12PM and (2) 4PM-9PM and you are paid $8.50 an hour. (1) Your actual pay would be $68 (8 hours x $8.50). Now let’s compare this number with the minimum wage plus one hour: 8+1 hours x $8 = $72. In this example, your actual pay is lower than what you are entitled to under the split-shift rule. Your split shift premium is $4 ($72-$68).
Example 3. Your workday consists of two shifts: (1) 9AM-12PM and (2) 4PM-9PM and you are paid $9 an hour. (1) Your actual pay would be $72 (8 hours x $72). Now let’s compare this number with the minimum wage plus one hour: 8+1 hours x $8 = $72. Because your actual pay is equal to the minimum wage plus one hour, you are not owed anything for working a split shift.
As you can see, in a split shift situation, if the wage earned is higher the applicable minimum wage plus one hour, the excess over the minimum wage is credited towards the split shift premium.
I regularly work an 8-hour shift that is split by a 2-hour break. Since it is a split shift and I am entitled to an additional hour of pay, does it mean that this 9th hour should be paid at an overtime rate?
No, the additional split-shift hour should not be counted towards overtime hours. In its June 2002 Manual (section 46.7.3), the DLSE explained that split-shift premium pays, although paid to employees in hourly increments as required under Wage Orders, do not constitute “hours worked” for purposes of calculating whether overtime is owed.
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