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Splitting Hairs: Getting Split-Shift Pay Right in California

I admit I didn’t know the following about split-shifts.  The issue has never come up in my own experience, and it was only after reading the following  from HR California CalChamber that I learned about the extra time employers must pay when they schedule employees for split-shifts:

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A split-shift is defined as a work schedule that is interrupted by unpaid, nonworking periods established by the employer, other than bona fide rest or meal periods. The number of hours separating the two work periods is not a factor if the time between is separated by more than a meal period and the work was within the 24-hour workday established by the employer.

The Industrial Welfare Commission (IWC) orders refer to split-shifts in the Minimum Wage section. The Wage Orders require one hour of pay at minimum wage, in addition to the minimum wage rate to be paid for all hours worked that workday. An exception is made where the employee resides at the place of employment.

An employee who works a total of six hours on a split shift day would be required to be paid not less than 6 x $8.00 plus $8.00, for a total of $56.00. If the employee’s regular rate of pay is $9.75 ($9.75 x 6 = $58.50) per hour or more, no additional payment is required.

The Reporting Time section of the Wage Orders contains the provisions for paying an employee who is required to report for work a second time in any one workday and is furnished less than two hours work. The employee must be paid two hours at the regular rate of pay. An employee who worked eight hours, left for the day, is called back to work and is furnished only one hour of work would be paid the one hour at 1.5 times the regular rate (daily overtime for hours worked), plus one hour at the regular wage for the two-hour minimum.

In addition, with certain exemptions found in the IWC order, if the employee is not provided at least two hours of work on the second reporting, reporting-time pay may apply. To assure compliance, review the complete split shift and reporting time pay regulations.

The Law Explained
If there is more than one hour between shifts, the employee must receive at least one hour’s pay at no less than the minimum wage rate for the time between shifts.

However, you may use any hourly amount the employee earns above minimum wage to offset the split shift requirement. In addition, you need not count the compensation for the time between split shifts for overtime purposes, since it is not compensation for hours actually worked.

Note: The dollar amounts in the following examples are based on the state minimum wage (effective Jan. 1, 2008) of $8.00 per hour.

Example 1: One Hour Split Shift Due
The following example is typical of a restaurant employee earning minimum wage for working the lunch and dinner shifts:

Hourly wage: $8.00 (effective Jan. 1, 2008)
Hours worked: 11:00-2:00 and 4:00-9:00 (total of eight hours)
Split shift wage: One hour at $8.00
Wages due: Eight hours worked ($64.00) plus one split shift hour ($8.00) = $72.00
Even though the employee was paid for nine hours, no overtime is owed because only eight hours were actually worked in the day.

Example 2: Split Shift Partially Offset by Hourly Wage
If the employee in the above example received a higher hourly wage, the split shift requirement would be either fully or partially offset:

Hourly wage: $8.15 (15 cents above minimum wage, effective Jan. 1, 2008)
Hours worked: 11:00-2:00 and 4:00-9:00 (total of eight hours)
Split shift wage: One hour at $8.00
Offset: 15 cents x 8 hours = $1.20 (therefore split shift partially offset: $8.00 – $1.20 = $6.80)
Wages due: Eight hours worked ($65.20) plus partially offset split shift hour ($6.80) = $72.00

Example 3: Split Shift Fully Offset by Hourly Wage

Hourly wage: $9.00 ($1 above minimum wage, effective Jan. 1, 2008)
Hours worked: 11:00-2:00 and 4:00-9:00 (total of eight hours)
Split shift wage: One hour at $8.00
Offset: $1 x 8 hours = $8.00 (therefore split shift totally offset)
Wages due: Eight hours worked = $72.00

With the exception of certain employees in the airline, railroad, trucking, mining and health care industries, there are no federal or state restrictions upon the number of hours an employee must be off duty between workdays or shifts. It is fairly common for employers to require employees to return to work before their next regularly scheduled shift or even to work a double shift with no time between the shifts.

Overtime
Whether overtime is due depends upon how the work falls within the employer’s designated 24-hour workday beginning at the same time each calendar day.

As an example, assume a workday starts and ends at 12 a.m. (midnight). Although there are only eight hours between shifts, the work occurs in two different workdays. So, overtime is not due unless the employee starts work at 7 a.m. and works beyond eight hours in that new workday.

The result is different if an employer has designated a workday that begins at 3 p.m. on one day and ends at 3 p.m. the next day.

Assume the employee worked eight hours from 3 p.m. to 11 p.m., and returned to work at 7 a.m. to again work eight hours. When the employee returns to work at 7 a.m., the hours are being worked within the same workday that began at 3 p.m the day before. Overtime would then run from 7 a.m. to 11 a.m., and double-time would be owed thereafter.

Safety Considerations
Sometimes, compliance with the law is not the only consideration. Safety considerations may be a factor when requiring an employee to return to work with limited time between shifts. Such a practice may affect the competency of employees and increase the accident rate.

To mitigate these safety concerns, companies may implement a policy requiring a minimum time between work shifts, except in emergencies.

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Interesting info, actually. I would guess a fairly high percentage of employers aren’t paying split-shifts correctly.

The preceding information pertains to California only, and is for general informational purposes only. It is not legal advice and is not intended as such. Human Resource professionals are strongly encouraged to check the laws and regulations of their home state and local cities.

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6 Responses to "Splitting Hairs: Getting Split-Shift Pay Right in California"

  1. Monica Godinez says:

    This helped me, but I do have a question. If an employee goes into work at 5pm Monday gets off at 1am Tuesday and returns to work another 8 hr shift at 8am Tuesday isn’t there double time owed?

    1. You bring up a good point. What it depends on is how your employer defines a 24-hour workday and a workweek. For example, most employers use midnight to midnight, Monday through Sunday. It appears from your question that you worked 7 hours on Monday and 9 hours on Tuesday. Technically, your Tuesday shift was split. This would entitle you to one hour of overtime pay plus a split shift compensation of one hour. (Unless you are making more than minimum wage.) However, I am assuming your workday goes from midnight to midnight, and this may not be the case in your situation.

      This issue of defining workdays and workweeks usually finds its way to the courts and I have attached a link concerning a California court of appeal on this issue. The first thing I would recommend you do is find out exactly how your employer calculates a workweek. Everything flows from there and that will be the only way for you to calculate overtime, double-time and split-shift pay issues.

      This can get to be a complex issue and your HR representative should be able to give you some straight answers. If they can’t, or won’t, then I suggest you seek the advice of a labor law attorney.

      Please remember this applies to California and different states may apply their labor regulations differently.

      http://www.dir.ca.gov/dlse/faq_overtime.htm

      http://www.wageandhourcounsel.com/2011/03/articles/state/california/california-court-of-appeal-finds-use-of-artificial-workweek-impermissible/

  2. Victoria says:

    I have a question, even after reading a bunch of websites for clarification. I work at a restaurant as a server, and I have been getting split shifts, but they are not full shifts. For example: 12-2 PM (lunch), then 7-9 PM (dinner). I already know there’s an issue with the hours themselves, but I’m just curious if I’m entitled to the extra hour compensation.

    My co-worker told me about this, and I’m hoping its true. It would make driving back and forth actually worthwhile.

    1. Hi Victoria:

      Sorry for the long delay. I have been swamped at my job. In your case, it appears you are eligible for the extra hour of compensation due to the fact you are working a split shift. I’m assuming you are earning minimum wage ($8.00); if not, you may not be eligible for the one hour compensation, depending on the adjustment for your actual wage. I’m not aware of any exemptions for your particular situation; therefore, the law should apply. However, as always, I have to make a disclaimer that I am not a lawyer and cannot give legal advice. Check this link because it has important info that applies to you. It is the California Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE).

      http://www.dir.ca.gov/dlse/Publications/WorkersRightsFlyer-Restaurant-English.pdf.

      Good luck and I hope it all gets resolved.

  3. Lisa Harcrow says:

    This article helped, but still didn’t address a situation I find myself in, which is compensation for Crossing Guards. Is the minimum shift needing to be 2 hrs for the split shift pay with 2 shifts for a total of 4 hrs or can compensation be as you stated above – one shift at 1 hr, 2nd shift at 1 hr, then 1 hr for split shift compensation, making it a total of 3 hrs per day of payment? I believe industry standards are 4 hrs of “guard hours” pay – 2hrs compensation for an am shift, and 2hrs compensation for a pm shift in the same day, however, this is being challenged by interpretation of the law by some cities who are citing split shift compensation as stated above, with the 1 hr of split compensation added. As I’m understanding it, this law only applies to FT work (8hrs) per day or is it 32 hrs per week, but what about part time work and split shifts? Any clarification you can give is GREATLY appreciated!
    Warm Regards,
    Lisa Harcrow

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