You May Be Entitled to Recover Extra Money with California’s Split-Shift Premiums.
When an employer assigns you shifts in the morning and afternoon, with a large break in between, the employer is basically compromising your whole day, without paying you for it. Has your employer ever asked you to work a “split shift” like this? If so, you may be entitled to extra compensation under a sparsely-utilized provision found in most California Industrial Welfare Commission (“IWC”) Wage Orders.A split shift is defined as a “work schedule, which is interrupted by non-paid, non-working periods established by the employer, other than bona fide meal or rest break periods.” Cal. Code Regs., tit. 8 §11010, subd. 2(M). For example, an hourly employee who has been assigned a morning shift from 8 a.m. to noon, plus an evening shift from 2 p.m. to 6 p.m., has been assigned to work a split shift, and is likely entitled to extra pay, assuming that the two-hour break between shifts is non-paid and non-working.
California frowns on employers assigning employees to work split shifts, which cause a major burden on employees and keep employers from having to hire more workers. However, many employers fail to pay the split-shift premium. We suspect this practice is rife in the promotional modeling (i.e., for promo models) and valet parking industries, for example.
Are You Entitled to a Split-Shift Premium?
The IWC has codified protections for employees who are scheduled to work split shifts in most industries. [1] Under most of the IWC’s Wage Orders, “[w]hen an employee works a split shift, one hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment.” (e.g., Cal.Code Regs., tit.8 §11010, subd. 4(C).) This additional hour of wages granted to an employee for every day that s/he works a split shift is commonly known as a “split-shift premium.”
How Much Time Do You Have to Recover an Unpaid Premium?
California Courts have provided further guidance on the nature of these split-shift premiums and the duration of the statute of limitations that applies to these claims. In Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1111-12, the California Supreme Court explained that the purpose of the split-shift premium is to: 1) compensate employees; and 2) “‘encourage proper notice and scheduling… consistent with maximum hours and minimum pay requirements.’” Id. (citing California Manufacturers Assn. v. Industrial Welfare Com. (1980) 134 Cal.App.3d. 95, 112). The Murphy Court further clarified that “split-shift pay provisions do not become penalties for statute of limitations purposes simply because they seek to shape employer conduct in addition to compensating employees.” Murphy v. Kenneth Cole Productions, Inc. 40 Cal.4th at 1112 (citing Caliber Bodyworks Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 381). Because split-shift premiums have been interpreted to be wages owed to an employee (rather than penalties), and in light of California Business & Professions Code §17200, any employee who seeks to recover unpaid split-shift premiums has a four-year statute of limitations in which to do so.
How Can You Recover Unpaid Split-Shift Premiums?
Though not a heavily litigated area of wage and hour law, at least one court has provided guidance regarding how you can recover split-shift premiums. In Kamar v. Radioshack Corporation, et al. 2008 WL 2229166, *9 (C.D. Cal. May 15, 2008), a federal judge in Los Angeles, interpreting California law, held that split-shift premiums “are enforceable to the same extent as minimum wage and overtime requirements.” The Court further clarified that “section 1194 [of the Labor Code] should be construed to include premium wages created by the IWC to reinforce basic wage and hour standards, and it is likely that the California Supreme Court would see it that way.” Id. By classifying split-shift premiums as wages recoverable in the same way as minimum wage and overtime premiums under §1194 of the California Labor Code, the Kamar court extended a private right of action for individuals to sue their employers directly for these unpaid, split-shift premiums, as well as for applicable interest, attorneys’ fees, and costs of suit.
Other Considerations
If your employer makes you travel between locations during the time between assignments on a single day, without compensation for travel time and/or reimbursement for expenses, this is also improper. Are you assigned to work one location in the morning, or early afternoon, and another later in the evening, with a trek between locations (and probably no time for breaks or meals) in between? Do something about it!
You deserve to be paid extra if you are an hourly employee (i.e., non-exempt) and your employer assigns you to work non-traditional hours – that is, something other than a standard eight-hour shift (or nine hour shift, if you have an unpaid lunch hour). If you have been assigned to work a split shift, but have not been paid extra for it, please contact Bryan Schwartz Law today.
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[1] Certain on-site occupations in the construction, drilling, logging and mining industries and miscellaneous employees not covered by the first fifteen Wage Orders may not be entitled to the split-shift premium. To determine which Wage Order is applicable to your industry, please visit http://www.dir.ca.gov/iwc/wageorderindustries.htm
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