Splitting hairs on split shifts
A new case from the California court of appeal, Securitas Security Services v. Superior Court, gave employers a rare victory in the wage and hour wars. In an extremely technical ruling, the court held that no “split shift” premium was due for graveyard shift employees whose regular shifts spanned two workdays.
Wage orders issued by California’s Industrial Welfare Commission require any employee who works a “split shift” to be paid an extra hour’s wage for the day in question. The wage orders define split shift to be “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal breaks.”
The employees claimed that, under California’s wage orders, a split shift occurs whenever an employee works two nonconsecutive periods in the same workday, such as when a shift begins on one workday and ends on another and the employee then returns to work several hours later on the second workday. Consider a graveyard shift employee, who works 8 p.m. to 4 a.m. five days a week. Using a midnight-to-midnight workday, that employee will work midnight to 4 a.m., clock out, go home and rest, and return to work again from 8 p.m. to midnight that same day. Split shift, said the employees. The trial court agreed, and denied Securitas’s summary judgment motion.
The court of appeal disagreed with the trial court (although it sent the case back for trial anyway):
In the context of a provision establishing minimum wages to compensate employees who are required to return to work after an interruption in their “work schedule,” we believe that a “work schedule” simply means an employee‟s designated working hours or periods of work. In our view, this is so irrespective of the “workday” established by the employer. A “split shift” occurs only when an employee’s designated working hours are interrupted by one or more unpaid, nonworking periods established by the employer that are not bona fide rest or meal periods. The fact that a single continuous shift happens to begin during one “workday” and end in another does not result in a “split shift.” Thus, employees working uninterrupted overnight shifts on consecutive days do not work a split shift and are not entitled to split-shift pay under the wage order.
The split shift premium, like the reporting time premium, is one of the less-well-known dangers lurking for unwary employers in the long and less-than-perfectly-drafted wage orders. (The reporting time premium requires employees who report to work but are given less than half their scheduled work be paid for half a shift, but no less than two hours.) This case is one more reminder that employers need to identify which wage order (or orders) applies to them and read them carefully. Rest assured that the plaintiffs’ bar is already doing so. Employers who are unclear about the content of the relevant wage orders will get little sympathy from the regulators or civil judges. (This case notwithstanding.)
Employers who schedule shifts that span two workdays can rest a bit more easily knowing that no split shift premium is due. And all employers can relish a rare favorable ruling in the ongoing wage and hour litigation explosion.
At least until the Supreme Court decides to take a look at it. (If so, let’s hope they don’t make us wait three years for a decision.)