Q : I work as a nurse in a hospital. I work 4 days a week. Twice a week I work 12 hours per shift and the rest of the days I work 8 hours per shift for a total of 40 hours per week. When I work an 8-hour shift, I am paid $30 per hour. When I work the 12-hour shift, I am paid $26 per hour for the fi rst 8 hours and $39 per hour (or time and a half) for the next 4 hours. I have computed my earnings during the 12-hour shift and it looks like I am still being paid an average of $30 per hour for all the 12 hours I work and my overtime hours do not really matter. This is true not only for me but for all the other nurses I work with. I was told that this is company policy and that it is perfectly legal because we are still being paid overtime at the premium rate. This does not seem fair. Is this really legal?
A: Nothing prohibits employers in California from instituting different rates of pay for their various employees. Such differences may be justified according to certain criteria like the employee’s duties, skill level, or years of employment with the company. Therefore, Nurse A may be paid $30 hourly and Nurse B may be paid $26 hourly.
However, your situation seems to be different. You are paid $30 hourly and $26 hourly depending on whether you are working an 8-hour shift or a 12-hour shift. All things being equal, and there is no other reason for the two-rate system, your employer might be trying to circumvent California’s overtime laws.
The following are considered
overtime work:
1) Any work in excess of eight hours per day;
2) Any work in excess of 40 hours in a work week;
3) Any work done on the fi rst 8 hours on the seventh consecutive day of work in a work week.
These overtime work must be paid at the rate of no less than one and one-half times the regular rate of pay.
Although it appears that your employer is paying you overtime, the employer really is not. The way the rates are assigned, and the way that the lower base rate only kicks in when you incur overtime hours, seem to indicate that your employer really only wants to pay one hourly rate (which in your case is $30 per hour). Since your employer does not want to pay overtime at that rate, the lower base rate is thus instituted for the shift that will incur overtime. That way, the employer pays the same hourly rate for all 40 hours worked in a work week. This explains why you seem to be making the same amount ($30 per hour) for all 40 hours of work, regardless of whether you work 12-hour shifts twice a week or 8-hour shifts 5 days a week.
In this instance, you may be entitled to collect additional compensation for overtime pay, interest and penalties. The law also allows you to recover attorneys’ fees. You may wish to consult with an experienced employment attorney as to what you can in this situation so you can explore your options.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained signifi cant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his offi ce by telephone at (818) 291-0088.
( Published on February 21, 2009 Asian Journal Los Angeles p. C3 )
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