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Attorney of Counsel
What is a split shift?
A split shift is a work schedule set by the employer that includes a block of unpaid time of more than one hour (other than a bona fide meal period) that occurs between two work periods. For example, a split shift would occur for a day in which the employer schedules an employee to work from 9:00 a.m. until 12:00 p.m. and then again at 2:00 p.m. until 7:00 p.m.
Split shifts are a foreign concept to most employers who schedule their employees on a traditional 8-hour per day work cycle. They are more common in the restaurant industry and other service businesses that experience significant fluctuations in work load during the course of the day.
What is split shift premium pay and when is an employer required to pay it?
Under the California Wage Orders, employees are entitled to split-shift premium pay if:
- The employee works a split shift, and
- If the total wages earned by the employee for that day do not exceed the California minimum wage for all hours worked, plus one additional hour.For example, if an employee earns $11.00 per hour and works a split shift for a total of eight hours, his/her total regular pay for that day would be $88.00. Assuming that the applicable minimum wage is $10.50 per hour, the minimum wage for all hours worked ($10.50 x 8 hours = $84.00) plus one additional hour at minimum wage ($10.50) would equal $94.50. Because the employee’s pay for the day ($88.00) does not exceed the applicable minimum wage for all hours worked plus one additional hour ($94.50), that employee would be entitled to split shift premium pay for that day.
The split shift premium pay amount is one additional hour of pay at the applicable minimum wage for each day that a split shift is worked. However, this amount is due only for employees who are paid at the minimum wage rate because wage amounts that are paid above the applicable minimum wage are credited against the split-shift premium pay. So, using the above example, the split shift premium pay for the day would be $6.50 (the difference between the $88.00 regular pay and the $94.50 split shift premium pay threshold).
Can an employer just schedule an extended meal period in place of a split shift break in order to avoid a split shift situation?
No. Remember that the meal break must be a true (or bona fide) meal break to be excepted from a split shift situation. The Division of Labor Standards Enforcement has taken the position that any break in excess of one hour should be treated as a split shift. However, remember that this is where the employer scheduled the break in excess of one hour. If the employer scheduled the meal break for just one hour but the employee voluntarily takes a longer meal break, this would not constitute a split shift.
How does the split shift premium pay affect overtime pay obligations?
Split shift premium pay is not wages earned for hours worked so it should not be counted as wages for purposes of calculating the employee’s regular rate for overtime premium pay calculations. Moreover, the split shift premium does not add to hours worked for determining how many overtime hours were worked.
Employers should review whether any employees are scheduled for unpaid breaks in excess of one hour, and if so, determine whether any of these employees would be entitled to split shift premium pay based on their level of earnings. Only employees who are at or near the minimum wage will be entitled to such premium pay. The hourly rate for Employees who are paid on a commission/production basis should be determined by the same method that their regular rate is calculated for overtime premium pay (i.e., total pay divided by total hours worked), as no other method is expressly provided. Employers who need further clarification should consult with employment counsel.