Not every employee works 9 to 5 in California. In the food and beverage and public transportation industries in particular, many employees work split shifts. This kind of shift occurs when an employer requires an unpaid, non-working period between an employee’s shifts. ((IWC Wage Orders §(2)(Q).)) The occurrence of a split shift is significant because it entitles an employee to a premium of one hour’s pay at the minimum wage. ((IWC Wage Orders §(4)(C).)) But some employers will do anything to save themselves a few extra bucks. If your employer’s failure to pay you a split-shift premium is giving you a splitting headache, relax. California law entitles you to compensation.
What’s a Split Shift?
The defining characteristic of a split shift is that the employer, not the employee or the law, requires the split. ((IWC Wage Orders §(2)(P).)) For example, a 30-minute meal break isn’t a split shift because California law already requires an employer to let a nonexempt employee take one after the first five hours of work. ((Lab. Code §226.7(b); IWC Wage Orders §§(11), (12).)) That doesn’t mean that any employer-mandated meal period, no matter how long, is a “meal period” within the meaning of the law. The Division of Labor Standards Enforcement considers a meal period “bona fide” only if it lasts an hour or less. ((DLSE Op. Ltr. 2012.12.11.)) So if your employer tells you to take a five-hour lunch, get an attorney.
The occurrence of a split-shift entitles a nonexempt employee to a premium of one hour’s pay at the applicable minimum wage rate. ((IWC Wage Orders §(4)(C).)) For instance, a bartender who works from 9:00 a.m. to 12:00 p.m. and 5:00 p.m. to 10:00 p.m. the same workday must receive an additional hour’s pay of $9. But his employer gets an offset to the extent he pays more than the minimum wage. So if the bartender made $11 per hour ($88, or 8 hours @ $11 per hour), he wouldn’t get a premium, as he earned $7 more than he would’ve earned under the split-shift rule ($81, or 8 hours @ $9 per hour + 1 hour @ $9).
The other side of the split-shift coin is that a split-shift interval will almost never count as overtime. For example, California law entitles a nonexempt employee to one-and-a-half times his regular rate for work in excess of eight in one workday or 40 in one workweek or for the first eight hours on the seventh consecutive workday of the workweek. ((Lab. Code §510(a).)) Typically, a split shift will span more than eight hours in one workday (e.g., 9:00 a.m. to 12:00 p.m. and 5:00 p.m. to 10:00 p.m.). The split-shift interval won’t count as overtime if the employer relieves the employee of all duty during the interval.
What Are an Employee’s Remedies for Non-Payment of a Split Shift Premium?
The employer’s failure to pay a nonexempt employee a small split-shift premium can get land him in big trouble. Labor Code section 1194.2 entitles a nonexempt employee to restitution in the amount of his unpaid premiums and liquidated damages in an amount equal to those premiums. ((Lab. Code §§1194, 1194.2(a).)) The employer can defeat a claim for liquidated damages only if he can somehow prove he somehow honestly and reasonably believed his failure to pay a split-shift premium didn’t violate any Labor Code provision relating to the minimum wage or any wage order. That’s highly unlikely.
Moreover, an employee may sue for civil penalties on behalf of all aggrieved current and former employees if his employer fails to pay split-shift premiums. ((Lab. Code §2699.5.)) The Labor Code Private Attorney General Act establishes a default civil penalty of $100 per aggrieved employee, per pay period for an initial violation and $200 per aggrieved employee, per pay period for each further violation. ((Lab. Code §2698(f)(2).)) Thus, an employer who withholds premiums from 10 employees for 26 biweekly pay periods will owe $1,000 for the first violation ($100 x 10 employees) and $50,000 for the next violations ($200 x 10 employees x 25 pay periods).