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Overtime after midnight? California

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  • Overtime after midnight? California

    Hello all - I have a question that I hope someone out there can help me with.

    The question(s) relates to a business that requires employees to work shifts. The last shift of the day starts at 7:00 p.m and of course runs until after midnight.

    An ex-employee is claiming that they had to work overtime every single day - recently I heard of a Labor Board decision that stated that hours worked after midnight were considered to be the next workday and were therefore not overtime as the shift began on one workday and carried over to the next (in other words it was two shifts on two workdays).

    The business does not have a policy defining the workday as begining at 12:01 and ending at 12:00 the next day - in fact no definition exists.

    The DLSE glossary for "workday" seems to suggest that any definition of a workday designed to evade overtime obligations would not be valid.

    So - if the employee did work a shift that spanned two "workdays" how does one approach the issue of overtime?

    Next - if the employee begins work at 12:01 per the "workday" (the second half of the previous shift) works for four hours, goes home and returns at 7:00 p.m. to begin the next shift they would by definition be working overtime because having worked four hours and then returning to work five more they have worked more that eight is a single workday - correct?

    Last - if this is in fact two separate shifts would there now be a requirement to pay a split shift premium?

    Thanks in advance for all of your help.

    Confused...

  • #2
    I am not reading what you are reading.

    1. You are claiming that the workday must start at midnight. CA-DLSE very specifically says "may begin at any time of day".

    2. You say that The DLSE glossary for "workday" seems to suggest that any definition of a workday designed to evade overtime obligations would not be valid. I am not seeing that. I am seeing However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations. You left out the front part of the sentence, which alters the meaning.

    3. You also said recently I heard of a Labor Board decision that stated that hours worked after midnight were considered to be the next workday and were therefore not overtime as the shift began on one workday and carried over to the next (in other words it was two shifts on two workdays). Now that would be interesting. Do you have a verifiable reference to this opinion that you can share?


    workday
    “Workday” is defined in the Industrial Welfare Commission Orders and Labor Code § 500 for the purpose of determining when daily overtime is due. A workday is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day. The beginning of an employee’s workday need not coincide with the beginning of that employee’s shift, and an employer may establish different workdays for different shifts. However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations. Daily overtime is due based on the hours worked in any given workday; and the averaging of hours over two or more workdays is not allowed.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      Daw

      Thanks for your reply - I am not suggesting the workday must begin at 12:01. I use the time for reference purposes only - that and the fact it would appear to be the most logical start time and appears to be so for most businesses.

      I said that the DLSE "seems to suggest" that changes made for the purposes of avoiding overtime would not be valid. I would assume that any alterations made for the purposes of avoiding overtime would also be questioned.

      The Labor Board decision is not one that I have seen - I did say I "heard" of it - I too would love to see the rationale behind any such decision, if it indeed exists. Nonetheless, it does pose a question.

      I am sorry that my post didn't meet your exacting standards - If you are able to give me an insight into my questions I would be truly grateful. If, however, you merely wish to demonstrate how good you are at parsing my post and proving just how much cleverer than me you are - job done, thank you. I came here for some decent advice, perhaps I was mistaken?

      Comment


      • #4
        My understanding has always been, the consecutive hours worked is the shift. I could be wrong, but this is how I have always dealt with it.
        Not everything in America is actionable in a court of law. Please remember that attorneys are in business for profit, and they get paid regardless of whether or not you win or lose.

        I offer my knowledge and experience at no charge, I admit that I am NOT infallible, I am wrong sometimes, hopefully another responder will correct me if that is the case with the answer above, regardless, it is your responsibility to verify any and all information provided.

        Comment


        • #5
          CatBert,

          Thanks for the reply. I would agree with your understanding as it makes most sense, and if the question hadn't been posed to me I would have thought no more of it.

          I am hoping that someone out there may have come across this issue before and have some insight. I am interested to know if such a splitting of shifts is legitimate; if so, would it trigger the need for a split shift premium? My guess is it would, but I suppose it all hinges on the splitting of the shift over two workdays...

          Comment


          • #6
            When a particular employee's shift starts is not the same as the beginning of the defined workday. It is very possible, and is even common, in 24 X 7 operations to have a single shift span two work days. DAW has it 100% correct.
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              Originally posted by AGK View Post
              Daw
              I am sorry that my post didn't meet your exacting standards - If you are able to give me an insight into my questions I would be truly grateful. If, however, you merely wish to demonstrate how good you are at parsing my post and proving just how much cleverer than me you are - job done, thank you. I came here for some decent advice, perhaps I was mistaken?
              I dont think the intent was to pick apart your post or to prove cleverness. The boards are not only for the original poster, but also a reference for other members. I think the purpose of DAW's response was to elaborate on what you said so that other readers would have a better understanding of what the law states.

              Comment


              • #8
                Originally posted by AGK View Post
                So - if the employee did work a shift that spanned two "workdays" how does one approach the issue of overtime?

                Next - if the employee begins work at 12:01 per the "workday" (the second half of the previous shift) works for four hours, goes home and returns at 7:00 p.m. to begin the next shift they would by definition be working overtime because having worked four hours and then returning to work five more they have worked more that eight is a single workday - correct?
                Overtime is calculated per workday. So you'd start your day at 00:01 (even if that is in the middle of a shift) and work until 07:00. When you come back that night your hours prior to midnight would be added to those 7 and then overtime would be figured from there. So yes, you could conceivable work overtime in this scenario.

                hth,

                Rich

                Comment


                • #9
                  It's very simple; you're making it harder than it is.

                  Workweek starts on DAY at XX time. Any hours worked in the 24-hour period starting at Day/time is what is looked at. When Day 2, XX time rolls around, the counting starts over again.
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    Originally posted by AGK View Post
                    ...would it trigger the need for a split shift premium?
                    Sorry, didn't see this earlier. Split shift could come into play but that depends on how big the split is and how much you make over the course of the workday. I don't have a reference at hand but this is how I've always calculated it.

                    How big is the split? If it's more than an hour then you have split shift.

                    How much are you owed for the split? That depends on how much you make. Add the hours you worked for the day multiplied by the amount per hour you make. Compare this to the number of hours you worked plus 1 and multiply it by the minimum wage. If the second is higher you get the difference as split pay.

                    Note that mathematically, even at minimum wage, if you are working overtime you will never get split pay because your total pay exceeds the minimum wage including the extra hour premium.

                    hth,

                    Rich

                    Comment


                    • #11
                      Thank you to all of you for your constructive responses to this topic.

                      Pattymd, no I am really not trying to make this harder - I feel it is a simple subject and agree with 99.9% of everything that has been said here. It didn't make sense to me that a shift that ended after midnight would be into a "new workday" and therefore there would be no overtime. The reason I even raised the subject was the information provided to me regarding an alleged decision to the contrary by a Labor Commissioner. I am going to see if I can find this decision (if it ever existed), I would love to see the rationale behind it; if I do ever get a copy I will gladly share it. I found it an interesting, but somewhat confusing concept, hence the post here.

                      Rich, thanks for your replies also. If (and I do say if) there is any validity to the shift being split over two workdays (which I doubt) then I fully believe that there would be a split-shift issue for hours worked later on the same day. The break would be in excess of an hour, the hourly rate is minimum wage, and the issue here is non-payment of overtime, so with those criteria in mind the split-shift premium would seem to come into play. That being said, the consensus here seems to be that the consecutive hours worked are the focus of whether or not there are two "workdays" involved.

                      Again, thank you all.

                      Comment

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