California's Split-Shift Law - A Quick Overview
Updated: Jun 11
CALIFORNIA'S SPLIT-SHIFT LAW - A QUICK OVERVIEW
If you live in today’s society, it is likely that you are employed or employ others. When people discuss their jobs, it is often in the form of being a “9 to 5” endeavor. However, there are many different working schedules that people are required to work, which tend to differ across industries.
In an increasing number of industries, Employees are no longer required to work the typical "9 to 5.” Instead, an Employer will require an employee to take a very long, unpaid break during their shift. Despite the Employer’s reasoning, one fact typically remains true - the Employee is not paid for the time they are required to be on this break.
If you are an Employee who has a long, unpaid break during your shift, you may be entitled to a “Split-Shift” premium.
WHAT IS A “SPLIT-SHIFT?”
The Industrial Welfare Commission defines “Split-Shift” as an Employer-established work schedule that is interrupted by a non-paid and non-working time block, not including a “bonafide” rest or meal period.
For example, a Split-Shift occurs when an Employer schedules an Employee to work their first shift from 10:00 am – 2:00 pm and a second shift from 5:00 pm - 9:00 pm. In this situation, the Employee technically is not working for the Employer from 3:00 pm – 5:00 pm. Yet, given the short amount of time, the Employee is not free to do whatever they want because they are required to report back to work. Rarely will an Employer pay the Employee any compensation for the three non-working hours they spend waiting to return to work. In this scenario, the Employee may be entitled to a Split-Shift Premium.
WHAT IS A “SPLIT-SHIFT PREMIUM?”
A Split-Shift Premium is equal to an hour of the Employee’s minimum wage – this premium is added to the Employee’s regular pay for that shift.
The catch is, however, if an Employee’s hourly rate is more than minimum wage, an Employer may offset the Split-Shift Premium using the total amount it pays over minimum wage for the time worked. If this amount is greater than the extra one-hour of minimum wage, the Employer is not required to provide a Split-Shift Premium. However, if this amount is less than the extra one-hour of minimum wage, the Employer is required to pay the difference.
For example: Suppose that 2 Employees were hired to do the same job and each of them have the same Split-Shift schedule, as described above, but at different hourly rates. Employee 1, new to the field, makes the 2018 California minimum wage: $11.00. Employee 2, experienced in the area, makes $15.00.
In this scenario, the Employee will receive the Split-Shift Premium because they were only getting paid minimum wage so there is no offset available.
In this scenario, since the Employee was paid over minimum wage, an Employer could calculate whether the offset sufficiently covered the Split-Shift Premium.
HOW WOULD AN EMPLOYEE KNOW IF THEY MAY BE ENTITLED TO A SPLIT-SHIFT PREMIUM?
Only non-exempt hourly Employees are eligible for a Split-Shift Premium.
To be eligible, an Employee must either make minimum wage or the amount they earn must not “cover” the Split-Shift Premium.
To be eligible, the Split-Shift must be the creation of the Employer and not the Employee. If an Employee requests a break in their shift (commonly to do personal business or errands), the Employee is not be entitled to a Split-Shift premium – as the Employer did not establish the split.
WHAT IF THE EMPLOYER TRIES TO SAY THAT THE BREAK IS A LUNCH BREAK?
The Division of Labor Standards Enforcement (“DLSE”), in its 12/11/2002 Opinion Letter “Hours Worked-Split-Shift”, has taken the position that a “bonafide” meal period is one that does not exceed one-hour (60 minutes) in length. Thus, if an Employee’s break exceeds one-hour, it’s likely the break will constitute a Split-Shift.
CAN THE SPLIT-SHIFT PREMIUM BE USED IN THE CALCULATION FOR OVERTIME?
If an Employee works an 8-hour day and is entitled to receive a Split-Shift Premium, the premium would not be counted toward overtime. Under the Wage Orders, Split-Shift Premiums do not constitute “hours worked” for purposes of calculating overtime.
IF AN EMPLOYEE IS OWED A SPLIT-SHIFT PREMIUM, WHAT DOES THAT MEAN?
There are very strict time limits to bring an action to recover owed wages. Typically, an employee has 3-years to bring a claim for unpaid wages and related penalties but this time may be shortened or extended based on individualized circumstances. If you or someone you know was terminated or quit and you had to wait, or are still waiting, to get paid, you should promptly seek an attorney to discuss your possibilities.
Disclaimer: All materials have been prepared for general information purposes only to permit you to learn more about Lansdown Law, its services, and experience. The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.