Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements

Announcement

Collapse
No announcement yet.

Split shift to avoid OT California

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Split shift to avoid OT California

    I read most of the split-shift threads and I think my issue is unique enough to warrant a new question/clarification. I make $25+/hr in the security field. Non-exempt.

    I have been working the following schedules during different months of my employment. All schedules were enforced to provide service to my employers clients:

    Schedule A
    0430-0730 Work
    0730-0830 Unpaid Lunch
    0830-1100 Work
    1100-1430 Unpaid recess
    1430-1700 Work
    Paid 8 hours regular.


    Schedule B
    0430-0730 Work 3hrs
    0730-0830 Unpaid Lunch 1hr
    0830-1100 Work 2.5hrs
    1100-1330 Unpaid recess 2.5hrs
    1330-1700 Work 3.5hrs
    1700-1800 Unpaid Lunch 1hr
    1800-2000 Work 2hrs
    Paid 10 hours regular and 1 hour OT.

    Am I owed any compensation for my employer not abiding by the <2hr recess requirements? Am I required to take 2 one hour unpaid lunches just so my employer does not have to pay me when there is no work to do?

    My employer also held a 4/10 vote but did not abide by the DLSE guidelines and did not submit the results to the DLSR. Does this make the vote void and require packpay for the OT not paid over 8hrs per day?

    We get paid different rates for night and Sunday work. My employer only bases OT on our regular rate of pay. Are they required to pay OT based on the average of all pay rates?

    Thanks in advance.

  • #2
    Parts of the question I can answer, and parts I cannot. Split shifts and overtime are legally two very different things.
    - Overtime rules first, and by themselves, because there is no legal linkage to overtime and split shifts. Find out exactly what your workweek is. The workweek under federal and CA law is a fixed 168 hour period of time that ends at the exact same time each week. All employers I have worked for used a workweek ending Sunday midnight, but different employers can and do use different workweek definitions. The workweek definition defines the CA workday definition. Under CA law, the workday ends at exactly the same time each day that the workweek ends. Once you know what your company's workweek definition is, then basically hours worked in the workweek are allocated to each workday, much like dealing a deck of cards. It is perfectly legal for the employer to arrange shifts in such a way as to minimize the overtime liability.
    CA overtime rules.
    - The split shift rules are not considered to be overtime at all by CA, but rather something very different. These are industry specific rules found in the wage orders, which means that you need to check your industries specific wage order to see if you are covered by the split shift rules. If under your industry's rules a split shift situation (as defined by CA rules) occurs, then you are eligible for an additional one hours pay each time this occurs. This additional hour is not legally considered to be an "hour worked".
    http://www.dir.ca.gov/dlse/opinions/2002-12-11.pdf
    - Regarding the "regular rate of pay" used to calculate overtime, you are correct that this should be based on the "weighted average" rate of pay, and not your normal rate of pay. This is both federal and state law. I will include a pointer to the federal overtime rules.
    http://www.dol.gov/esa/whd/regs/compliance/whdfs23.pdf
    - Regarding the CA Alternate Work Schedules, I have read about those, but have thus far managed to avoid actually having to use one. I would assume that if the vote failed, then you are still under the normal rules, but that is a guess. You might need to contact CA-DLSE on that directly.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      Thanks for the response DAW.
      My workweek is Monday 0000.01-Sunday 0000 as a best description.

      I am trying to understand if it is legally acceptable in CA to schedule someone from 0430-2000 (15.5hrs) and only pay 11. The closest IWO I should fall under is IWO4. It only defines a split shift but does not show its restrictions, if any. The three agri wage orders require a split shift to be no more than 2hours of unpaid time. This is where i am wondering if my employer owes me compensation for having 2+hr intervals of unpaid time. The 1 hour lunches and recess times are solely for the employer and severely limit any personal activities I can perform (almost nothing is open from 0730-0830, traffic is horrible from 1100-1430 and 1700-1800). I have to go straight to sleep after work so I could be up at 0330 to start my new day so after work activities are impossible. Wouldn't this pass the test that my employer is controlling my personal activities therefore is compensable(sp) time?
      I did this shift for several months and my employer may go back to it if it is a non-issue with state/fed law.

      Comment


      • #4
        California labor law attorney

        How many employees in the State of California are being treated in this manner (that work for your company)?
        Walter

        www.Californialaborlaw.info
        "California Wage and Hour Class Action Attorneys"

        Disclaimer: The above correspondence does not constitute legal advice nor establish an attorney-client relationship. You should seek the advice of independent legal counsel before relying upon, acting upon or not acting upon any information contained in this correspondence.

        Comment


        • #5
          Originally posted by splitshifter View Post
          I am trying to understand if it is legally acceptable in CA to schedule someone from 0430-2000 (15.5hrs) and only pay 11.
          I do not think that there is a hard answer to this question. You worked 11 hours and are being paid 11 hours. You can keep making the point that you are "scheduled" 15.5 hrs but this is not a point recognized in either federal or CA law.

          I cannot tell if you are being paid the split shift penalty, but that is CA's required response to the split shift. The only thing that is left are the federal 29 CFR 785.xxx rules and those have a "severely restricted" requirement. A 2 hour window is a lot wider then most of the court decisions I have read on this. You can try talking to CA-DLSE directly, or maybe reading their published opinion letters, but I am not seeing anything your employer is doing illegal as long as the shift split penalty is being paid.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            Originally posted by CaliforniaLaborLaw View Post
            How many employees in the State of California are being treated in this manner (that work for your company)?
            A total of 15 but not at the same times due to turnover. Pretty much 12 affected now.

            Comment


            • #7
              Isn't there a limit on how much you make per hour that either qualifies or disqualifies you from split shift pay?

              I thought it was determined by total hours worked and average pay earned. You would then be approved or not based on that number (some people have different hourly wage for each shift).

              "Splitshifter" makes $25 an hour. Is he not automatically disqualified from getting split shift pay based on his hourly wage?

              Comment


              • #8
                That is an interesting theory. Can you support it? Is this $25 number actually written down somewhere in the law where other people can see it?

                I can tell you that CA has something called Wage Orders, which are industry specific regulations. Most of the wage orders have split shift rules, which all fail to mention your $25 rule for some reason. I will include the common wording below.

                4. Minimum Wages ...
                (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.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  Originally posted by DAW View Post
                  That is an interesting theory. Can you support it? Is this $25 number actually written down somewhere in the law where other people can see it?

                  I can tell you that CA has something called Wage Orders, which are industry specific regulations. Most of the wage orders have split shift rules, which all fail to mention your $25 rule for some reason. I will include the common wording below.

                  4. Minimum Wages ...
                  (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.
                  DAW,
                  The above quote re Minimum wage is correct. I would only get the 1hr split shift premium if I was earning minimum wage. My issue is with the CA/FED definition of being under the control of my employer and whether I should be compensated for not being able to attend to personal things. My work is what I consider too far for me to attend to personal things during those breaks so I consider myself under the control of my employer which is considered "work".
                  I have contacted an attorney and hopefully I can provide an answer after settlement/judgement. One thing I will add off topic is that it is a bad idea to file a wage claim with DLSE or file suit in CA court. By filing suit on the federal level an employee can get double the backpay due as well as a good chance of having all attorney fees paid. This is covered in Title 29 Section 216 as liquid damages. DLSE can only legally get back lost wages per CA law.

                  Comment


                  • #10
                    Originally posted by splitshifter View Post
                    I would only get the 1hr split shift premium if I was earning minimum wage.
                    That is not correct. To my knowledge, you would get 1 hour at minimum wage if the split shift occurs no matter what your hourly rate is. Do you have any actual support for your position that this rule effects only minimum wage workers? Because this is not what the exact wording of the wage order says. I have worked for employers whose non-minimum wage workers have successfully filed wage claims with the CA-DLSE for split shift payments against my employer. I have worked for payroll departments for whom "the boss" would not let us pay split shift payments until losing the wage claim convienced "the boss" that this was a real rule that actually had to be followed.
                    Last edited by DAW; 09-19-2008, 07:18 PM.
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      I think he is referencing the text:

                      (c) When an employee works a split shift, one (1) 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.

                      (Emphasis mine)

                      This excerpt is from Wage Order 4.

                      Comment


                      • #12
                        I can't paste the quote directly but this is the link to the DLSE pdf poster:

                        http://www.dir.ca.gov/dlse/Publicati...nt-English.pdf

                        Same as what socalpayroll stated above.

                        Comment


                        • #13
                          Well, now there is a twist to the story. One of my co-workers met face to face with a "better informed" DLSE employee at the gov office near Haight-Ashbury. This DLSE ee stated that there may be an issue with enforcing CA law due to the fact that we work for a private company that has a contract with the Federal Government. The FED rules and the contract may trump CA labor law. This is all still speculative but I will be meeting with the "pro" OT person at the branch within the next week.

                          On a side note, my boss announced today that he is quitting and moving on to one of the Government entities with a real bad track record of dealing with catastrophies. The agency starts with an F and ends with an A, 4 letters.

                          Comment

                          The LaborLawTalk.com forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on LaborLawTalk.com are opinions and suggestions of members and is not a representation of the opinions of LaborLawTalk.com. LaborLawTalk.com does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.
                          Working...
                          X