Q: I REGULARLY work 12 hours per day at a restaurant. My work day is divided into two shifts. My first shift is between 8 a.m. to 2 pm I have an unpaid break from 2 pm to 4 pm. Then I have to go back to work at 4 pm to 10 pm. I am paid only my regular hourly rate of $8 per hour for all the hours I work for that day. Am I entitled to overtime or additional pay?
A. Your employer gave you a split-shift schedule. A split-shift is "any employer-established work schedule interrupted by an unpaid non-working period, other than a bona fide rest or meal period." The way a split shift is set up is that employees are scheduled to work a number of hours and this is followed by a break usually lasting more than an hour. After the break, the employee is told to come back to work and work an additional number of hours.
Employees who work a split shift schedule are entitled to be paid a premium one hour’s pay at the minimum wage rate, which is currently $8 per hour. This is in addition to the minimum wage rate paid to the employee. The reason for this is that employees should receive a higher wage in exchange for working outside the normal shift period. Split-shift premium payments need to be paid only to employees who do not reside at their place of employment. The employer is also mandated to keep accurate time records showing when an employee begins and ends the work periods, including split-shift intervals.
Another, and perhaps more important, issue related to split-shifts is the employee’s right to overtime payment. Employers must pay their non-exempt employees one and one-half times their regular rate of pay for all work in excess of 8 hours per day. This is true for the split-shift employee described above.
There are employers who use the split shift schedule to avoid paying overtime premium to employees and yet, nevertheless, compel these employees to work 10- to 14-hour days without overtime compensation. As in the case above, the employee worked 6 hours during the first shift and after a two-hour break, worked an additional 6 hours, which brings the total work hours to 12. Here, the employee is entitled to be paid 4 hours of overtime premium pay for the day.
Split-shift employees are also entitled to a 30-minute uninterrupted meal break for every 5 hours of work per day. If employees work 10-hour days, they are entitled to two 30-minute breaks. Each break should be provided after every 5 hours of work. Also, employees must be provided paid rest breaks of at least 10-minute duration for every 4 hours of work, or a major fraction of 4 hours. An employee who works at least 8 hours per day is entitled to two 10-minute rest breaks. An employee who works 12 hours per day is entitled to three 10-minute rest breaks.
If an employer fails to provide an employee a meal period or rest period in accordance with the law, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that the meal or rest period is not provided.
Employees who believe that they are working split-shifts or are working more than 8 hours per work day and are not properly compensated should consult with an experienced employment attorney to determine whether they are entitled to additional pay.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant 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 office by telephone at (818) 291-0088.
( Published May 29, 2010 in Asian Journal Los Angeles p. C3 )
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