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Part-Time Employee Overnight California

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  • Part-Time Employee Overnight California

    So here's the situation, best I can tell the business is doing everything legally, but it still just comes off wrong as for how some of the people that work for me are treated.

    Work for a smaller non-profit, and I direct overnight programs for groups, like Boy Scouts and such. I have several college-age employees that serve as overnight counselors/supervisors/instructors for these group, and I want to make sure that how our employer treats these non-exempt employees is ok.

    The events happen on a Friday or Saturday night, and generally 2 counselors work per event. The 2 counselors arrive generally at 6pm, and the event last until 10:30am the next morning. So the counselors clock in at 6pm, and both work until the group goes to sleep, usually about 1am. Then, 1 counselor is instructed to clock out and go home, and to be back at work at 7am the next morning to work until the group is finished at 10:30am. The other counselor is required to stay the whole time, but is allowed to sleep as long as the group is asleep. The counselor still on-duty is paid for the entire time, even while asleep.

    So best I can tell, there are 2 bigger issues.

    The first is the workday. The employer has defined that the workday begins/ends at midnight everyday. They have been consistent with this, and always do that accounting for a workday beginning and ending at midnight. From my reading, it seems this is 100% legal under California law, as long as it is always midnight, even though for 1 counselor it means 14 hours of regular pay and 2.5 hours of overtime pay for a 16.5 hour shift worked straight through (meal breaks seem ok from my reading for the law, so I'm ignoring them). Am I looking at this correctly, that the accounting method is 100% legal, even if I do feel it's unethical? The employer's justification for the "it doesn't seem right" argument I posed is that the counselor on duty for the whole event gets paid for sleeping, so it's ok that they don't get overtime for that. Even though the counselor on duty doesn't always get to sleep, as the groups often don't sleep and any single person awake means the counselor must be awake as well.

    The second issue, for me, is the split shift. Originally, both counselors were required to stay the whole night. To cut costs, the employer has decided that only one can stay the whole night, and the other must take the split shift, which is really crappy hours and very little sleep at home. Best I can tell, since the pay is more than minimum wage (barely, and through no fault of my own, I love my counselors and they deserve a lot more than management gives them) and the 2nd reporting is still quite sizable, there is nothing illegal or wrong about that situation either.

    So best I can tell, there's nothing illegal happening. I just there was something I could do for these employees that work for me, because they get the short end of the stick. They get paid less per hour than daytime counselors who have fewer responsibilities, and the split shift means they often get fewer hours (and crappy hours at that) than the daytime counselors per week.

    I know another big issue is meal and rest breaks, but I personally make sure those get taken care of, so I excluded those points from this post.

    Any suggestions?

  • #2
    Two points: first look at the definition of a work day. The company *may* define the work day diferently for different workers, though it may chose not to do so. In this case, I would hazard a guess that "fair" would be to start the day at 1800 rather than midnight, but that's me.

    Second, 14 hours of regular time looks off to me. Look at your wage order (I'm not sure which you fall under) and check that there are no exceptions to standard overtime calculations. Typically overtime starts after 8 hours and double time after 12 in a work day. There are also rules for split-shift pay (Wage Orders 14+15 come to mind), though these rules might not be in all Wage Orders; I haven't looked.

    Hope that helps.

    Comment


    • #3
      Originally posted by revans View Post
      Two points: first look at the definition of a work day. The company *may* define the work day diferently for different workers, though it may chose not to do so. In this case, I would hazard a guess that "fair" would be to start the day at 1800 rather than midnight, but that's me.
      That's exactly my thought. If it were up to me, I think "fair" would be set up so that the 16.5 hours shift is all in the same work day, since they're doing it straight through. But I'm afraid my calls for "fair" fall on deaf ears, and I can't find any basis for making an "illegal" case either.

      Originally posted by revans View Post
      Second, 14 hours of regular time looks off to me. Look at your wage order (I'm not sure which you fall under) and check that there are no exceptions to standard overtime calculations. Typically overtime starts after 8 hours and double time after 12 in a work day. There are also rules for split-shift pay (Wage Orders 14+15 come to mind), though these rules might not be in all Wage Orders; I haven't looked.
      Reading through the wage orders, I can't find anything that says more than "one hour at minimum wage" of split shift pay. And I think these counselors would fall under #17, which in my quick reading, I didn't see anything at all about extra split shift pay.

      Either way, I do feel it's wrong for an employee to be working 16.5 hours straight (not including breaks), and having only 2.5 hours of that pay count as overtime because of how the "workday" is defined.

      Comment


      • #4
        Sunday midnight is the legal default for workweeks in CA. The last 4 employers I have worked for used Sunday midnight for all employees. You are correct that the employer can use multiple workweek definitions, but this is both mechanically difficult, and somewhat unusual. If one reads the CA OT worksheet, CA is very clear that workwork is not legally related to shifts or schedules, and that the workweek determines the workday.
        http://www.dir.ca.gov/dlse/FAQ_Overtime.htm

        There are only a few states (maybe 4) that have daily overtime, and off the top of my head only one state (not CA) bases their overtime on when work starts as opposed to the workday/workweek.

        I am not seeing anything illegal in what is described. I understand that this is not the answer that is being looked for.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment

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