Employees Who Work Consecutive Overnight Shifts That Extend Two Workdays Are Not Entitled To Split Shift Premium Pay

By: Grace Chan
July 15, 2011

Wage Order No. 4, issued by the Industrial Welfare Commission, regulates wages and other working conditions in California for employees in professional, technical, clerical, mechanical and similar occupations.  It provides that an employer must pay an employee who works a split shift one hour's pay at the minimum wage, in addition to the minimum wage for that workday, except when the employee resides at the place of employment.  Wage Order No 4 defines a split shift as "a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal breaks."  It also defines a shift as "designated hours of work designated by an employee, with a designated beginning time and quitting time." 

The California Court of Appeal recently addressed the issue of whether consecutive overnight shifts, for example if an employee starts a shift in the evening of one workday, ends the morning of the next workday, and then starts a consecutive shift on the evening of the second workday, is a split shift for purposes of Wage Order No. 4.  In Securitas Security Services USA, Inc. v. Superior Court, current and former security guards and field supervisors, filed a class action complaint against Securitas alleging wage and hour violations.  Plaintiffs occasionally worked night shifts that began on one workday and ended the next, in excess of eight hours.  As Securitas had established the workday as beginning at midnight and ending the following midnight, plaintiffs' shifts were occasionally divided between two workdays.  Plaintiffs alleged that Securitas failed to pay mandatory split shift pay as required by Wage Order No. 4. 

Securitas moved for summary judgment and argued that plaintiffs were not entitled to split shift pay because they did not work split shifts as defined by Wage Order No 4.  It contended that an uninterrupted work shift that extends through the night and falls on two calendar days and two workdays is not a split shift, and that a split shift does not occur if an employee ends an overnight shift in the morning and begins another overnight shift late in the evening.  Plaintiffs counter argued that a split shift occurred when an employee worked two nonconsecutive periods in the same workday.  For example, if an employee begins a shift on one workday and ends on another, and the employee then returns to work several hours later on the second day, that would amount to a split shift.  In addition, plaintiffs further argued that Securitas had failed to pay split shift pay in other situations as well, such as where the employee worked nonconsecutive periods in the same workday without working through midnight. 

The trial court held that a split shift for purposes of Wage Order No. 4 occurs whenever an employee works two nonconsecutive periods of time in the same workday and rejected Securitas' interpretation of a split shift.  Securitas petitioned the Court of Appeal for a writ of mandate.  After several procedural issues arose before the Court of Appeal, it issued an order to show cause. 

The Court began its analysis by explaining that wage orders are quasi-legislative regulations and courts must construe them in the same manner as statutes using the ordinary rules of statutory construction.  Moreover, as the wage orders are remedial in nature, courts must liberally construe them for the protection and benefit of workers. 

The Court noted that Wage Order No. 4 defines a split shift as a "work schedule, which is interrupted by non-paid non-working periods" other than bona fide meal or rest breaks.  Neither the Wage Order or the Labor Code, however, defines a "work schedule."  The Court thus stated that a "work schedule" simply means an employee's designated working hours or periods of work, irrespective of the workday established by the employer.  Based on this definition, the Court held that a split shift occurs only when an employee's designated working hours are interrupted by unpaid, nonworking periods established by the employer that are not bona fide meal or rest breaks.  It explicitly stated that the fact that a single shift begins on one workday and extends to the next workday does not result in a split shift. 

The Court thus determined that plaintiffs' consecutive overnight shifts did not create a split shift that entitled them to split shift pay.  However, with regard to plaintiffs' second claim that Securitas failed to pay split shift premiums in other circumstances not involving consecutive overnight shifts, the Court found that Securitas failed to show that plaintiffs did not work split shifts in other circumstances.  It thus held that Securitas failed to meet its burden as the party moving for summary judgment and remanded the matter for further proceedings.    

The split shift premium, like reporting time pay, is very technical and is one of the many potential pitfalls for employers who are not readily familiar with the requirements of the Labor Code and relevant Wage Orders.  This case identifies one situation where no split shift occurs.  It does not, however, provide further clarification as to what would amount to a split shift.  Employers thus must still exercise caution when scheduling shifts to ensure they observe the requirements of the Labor Code and Wage Orders. 

This case also serves as an important reminder that, in order to ensure compliance with California's various wage and hour laws, employers must periodically review the Industrial Welfare Commission's Wage Orders and properly determine which orders apply to its employees.  There are currently 17 wage orders for employees in specific occupations, each of which contains distinct legal obligations for employers. 

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Reminder! New IRS Mileage Reimbursement Rates Effective July 1, 2011

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This article was written by Grace Chan, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore.  Ms. Chan is an Associate in the San Francisco office and can be reached at (415) 512-3000 or at gchan@lcwlegal.com

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