What Constitutes a Split Shift in California?
The definition of a split shift under California labor law is a type of work schedule design where an employee’s work hours are separated by a non-paid, non-work period established by the employer. This sort of shift is in contrast to the standard work shift, which generally involves an employee working consecutive hours without such separation periods.
A split shift typically involves an employee beginning their work day at, for example, 9:00 a.m . , taking a break from work for three hours of non-work time (for instance the lunch period), and then returning to work for four additional consecutive hours during the afternoon or evening.
In the event of a company or other employer-imposed break between the work day, as per above, and the Noon Lunch Period, employees would be covered by the California split shift laws, and entitled to an additional, minimum, one (1)-hour’s pay for each work day for which a split shift is imposed.
Split Shift Requirements Under the Law
One of the critical legal requirements for split shifts in California, including in the restaurant industry, is the provision of split shift compensation. This is the additional hour of pay out of compliance with meal and rest break and overtime wages required by the applicable California wage orders for the split shifts.
Employers must pay each nonexempt employee an additional hour of pay at the employees’ regular rate of pay for each workday that they are required to work a split shift. Labor Code § 511 states:
The Secretary of the Department of Industrial Relations shall have the authority to fix and order the payment of one hour’s pay at the regular rate of pay of the employee as additional compensation to be paid to any employee so employed under split shifts as compensation for such split shift. . . .
This section of the Labor Code is often referred to as "pay and go" (because the employee earns the extra hour of pay regardless of whether the split shift worked that day). Similar to the split shift scheduling requirements, there are some exceptions to the one hour of pay rule such as, for example, when the split shift is caused by operational needs for peak hours or as a result of an emerorngy relief measures.
Employers are required to pay split shift payments, as it is now generally held that the additional compensation for split shifts is simply a form of pay during working hours and not "premium pay or other special rate" as described in Labor Code § 511.
In addition to split shift compensation, employers also are legally required to provide an off-duty meal period of not less than 30 minutes to employees working more than five hours in a day. Labor Code § 512 mandates that:
An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total hours worked is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with an additional meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the meal periods may be waived by mutual consent of the employer and employee.
Since there is no exemption or waiver of this requirement with respect to split shifts, every employee must be provided with an off-duty meal period for shifts exceeding five hours of work in a day.
Split shifts also require that employers provide a mandatory rest period of at least 10 minutes for every four hours worked (or major fraction thereof), which rest breaks should be taken in the middle of each split shift, between two hours of work and no later than the end of the work period.
While split shift premiums are sometimes difficult for employers to understand as well as comply with, restaurant and fast food employers further benefit from certain legislative exemptions from these split shift requirements.
Calculating Split Shift Compensation
The California requirement for split shift pay goes beyond merely compensating employees at least two times in a day, meaning that California employers with "split shift" employees must be especially conscious about how they calculate the required additional compensation.
The FLSA
In many states, a "split shift" (i.e. when an employee is called back to some work at a later time in the same workday) does not generally require an employer to pay the employee anything more than their normal wages (i.e. regular hourly wage rate times hours actually worked). However, the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(e)(1) provides the following:
In determining the wage paid to any employee, there shall be deducted therefrom all amounts paid by the employer to such employee as overtime compensation . . . This shall be true whether such amounts so paid are calculated on a time, piece, commission or other basis . . . Provided that there shall be included as part of the wage of such employee only payments by the employer for (i) hours for which the employee is entitled to payment as a result of the application of any written or unwritten agreement for compensation or (ii) other amounts of compensation to the extent such payment is made pursuant to an agreement, policy or practice which has the effect of providing compensation not provided by any other source.
California’s Split Shift Laws
Unlike federal laws, California has mandatory wage requirements for employees who work on a split-shift schedule.
Additional Compensation
The California wage orders generally require that the employer provide split shift employees with additional compensation beyond their normal wages where the "split shift" requires the employee to report to and return from work on two (2) different occasions in the same workday. That additional compensation must be equal to one hour’s pay at the state’s minimum wage. Notably, California’s state excess wage laws must always be followed, but only to the extent that they provide greater compensation for the employee than the federal law would (i.e. FLSA). So in most cases FLSA compensates split shift employees enough, but there are still cases such as these that are exceptions.
The goal of this California split shift pay law is to provide additional compensation required for the inconvenience of reporting to work earlier in the day, returning home, and then having to go back to work later in the day.
Split Shift Pay is Mandatory
Again, being aware of the split shift pay requirement, and the fact that it must always be followed above-and-beyond any Federal requirements, is essential to making sure your employees are being properly compensated. If an employer does not provide additional split shift pay to such employees, it is likely that the employee’s rights under California and/or federal wage laws have been violated. If you are an employer and are not certain whether your business needs to pay additional compensation to its employees on split shifts, you should consult an experienced labor employment attorney about the matter.
Employer Requirements Under the Law
Employers must provide notice to employees before they agree to a split shift. The notice does not have to be in a particular format. Posting it on a bulletin board is sufficient. However, the burden is on employers to keep track of the relevant pay earned by the employee.
The notice must include:
- (1) The potential additional hours to the employee’s regular schedule;
- (2) That the additional hours may not be consecutive to the employee’s regular schedule and may require the employee to return to work; and
- (3) That the employee will be paid an additional hour’s worth of wages for each split.
Employers should not fail to account for the pay for a split shift should the employee fail to return to the workplace after a split shift period. In this scenario, employers simply represent the hours of pay on the payroll register and then withhold that amount from the employee’s wages on an itemized wage statement when the wages are paid.
The recordkeeping burden is on employers to track the applicable hours worked by each employee. If the splitting of shifts makes such a practice "impossible or impractical" then the employer must pay for the split regardless and may not deny the claim by the employee. In these extreme situations, such as unpredictable or severe weather, fires, earthquakes, etc., the employer may not have the ability or time to track the hours worked. If the employer can establish that the conditions made it impossible to track the hours worked, then it need not pay the additional hour of pay.
To mitigate risk on this issue, the best practice is to closely monitor compliance with the law. Employers are required to keep accurate records of the hours worked and pay provided to employees under this law.
Split Shift Myths
The most notable misconception about California’s split shift laws is the related notion that there is a 20-minute unpaid split shift break. The presence of such a "rule," however, is merely for purposes of calculating the "split shift premium" discussed above. It does not mean that a 20-minute unpaid shift break must be given or that one is owed when such a break is provided. Rather, whether a split shift break must be provided and whether such a break must be paid depend on the particular facts of each situation.
Another misconception is the idea that the "split shift premium" requires an additional hour’s pay. As noted above, the split shift bonus is calculated based on the formula below. So, (overtly illicit) double counting aside, it is not possible for the split shift premium to be considered an hour’s pay.
Yet another misconception is that a split shift occurs whenever a meal or rest period is taken during a normal work shift . But, while the existence of such a break may be evidence of the fact-intensive issue of whether such a break requires compensation, it does not create an entitlement to a split shift premium by itself.
Some think that over 12 hours worked in a row means a split shift. Such is not true. Only California employers that issue two scales of pay for different times of day, and pay the employee the lower of the two rates for hours worked on the nonstandard scale, are required to pay a "split shift premium."
Some believe there must be a specified amount of time between shifts in order to create a split shift. But, the relevant inquiry is the amount of time between shifts, not the amount of time in the shift between shifts.
Some think the split shift rule has been repealed or invalidated. While SB 3 repealed and replaced Labor Code Section 511, which had codified the split shift rule, the standard for when a split shift was required remained essentially unchanged.
Negative Consequences of Violating the Law
Employers who do not pay their employees the additional hour for split shifts may be subject to damages for unpaid wages, waiting time penalties, and even penalties under PAGA (the Private Attorneys General Act). In addition to penalties, employers may also be on the hook for the employee’s attorneys’ fees which, as described in an earlier post, can quickly add up to tens of thousands of dollars.
Litigation is not the only potentially costly consequence for failure to comply with split shift requirements in California. The California Department of Industrial Relations’ Division of Labor Standards Enforcement (DLSE), also known as the Labor Commissioner’s Office, may visit the employer’s place of business in response to a complaint or even as part of a random inspection. If it determines that the employer has violated split shift hours, it may issue citations, fines, and order remediation of the violations, including payment of unpaid wages and other monetary relief. Of course, employers are also subject to the risks of private litigation from current and/or former employees, many of whom are represented by counsel, vice what was traditionally referred to junior partners.
Resolving Split Shift Issues
If a California employee feels he or she has been wrongly deprived of split shift pay, the appropriate course of action would be to immediately report this to the employer. The employer is likely to have a system in place for addressing concerns formally. If not, the employee should consider putting the complaint in writing, in addition to speaking to a supervisor or manager. If the circumstances indicate that the employee is not likely to be taken seriously, he or she may want to contact the State Labor Commissioner (California Division of Labor Standards Enforcement, DLSE, also known as the "Labor Commissioner’s Office") to make the complaint in person. The employee may also wish to resort to legal action , particularly if he or she has strong evidence that the absence of pay was not inadvertent, but a deliberate decision by the employer. Employees who suspect their employer has failed to comply with California wage and hour laws should strongly consider seeking the advice of an employment attorney. In the event of violations, it may be possible to recover not only the owed wages, but also penalties and attorneys’ fees. It is important to remember that the applicable statute of limitations for California wage and hour lawsuits is three years. The workplace logbook and records maintained by the employer are also essential in a wage dispute.