The Graveyard Shift.

It is Friday night and I get a call from a good friend who runs a security company called Safest Route. He gets a call for from a security officer with another company looking for employment. As he is making his case for why he should be hired, he states that he understands that the "California Workday" is from midnight to midnight, and his shifts from 8:00 pm to 8:00 am do not provide overtime since he works 4 hours on calendar day 1; and eight hours on calendar day 2. He is saying this to prove his knowledge and understanding of the industry -- but he could not be more wrong. He had been fooled by a corrupt employer who chose to withhold overtime from his employees using the myth of the "California workday."

Many employers, particularly in the Security, Retail and Restaurant industries have also propagated this lie and this article is intended to highlight the truth. 

Overtime 

Most people understand that for hourly non-exempt employees, overtime begins after the eighth hour on the clock in a single day of work, and for those hours greater than 40 hours in a work week (Of course, if you have a Union, there may exist a collective bargaining agreement that provides for different rules negotiated between your employer and the union). Overtime is not just 1 and 1/2 times your hour wage but is 1 1/2 times your regular rate of pay.

For example, notwithstanding any bonuses that would be calculated in your regular rate of pay, a person earning $30 per hour must earn at least $45 per hour for any time that exceeds 8 hours in a 'workday' (shift), or 40 hours in a workweek. Further, employees may receive double time for any time worked after 12 hours in a work day. 

Split Shifts

Employers who use the corrupt practices often state that this practice is related to the "split shift," a form of scheduling that that includes the beginning of a shift of four hours, and a long unpaid break that is not a lunch break, and continuing your shift later in the day for an additional time period. Under this rule, overtime would not be required if the total number of hours in a single work day was less than 8, and if it crossed over into a second calendar day the time would start all over. Under California law, employers must pay an additional hour's pay for workdays where employees work a split shift.  Wage Order No. 4 defines a “split shift” as “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal breaks.”  A “shift” is defined as “designated hours of work by an employee, with a designated beginning time and quitting time.”

The Court in Securitas Security Services USA, Inc. v. Superior Court (Holland), No. B227950 (Cal. Ct. App. July 7, 2011), ruled that working between two calendar days is not a split shift. This was seen as good news for employers who weren't required to pay a split shift premium. However, this left the issue of overtime for overnight workers. 

So What Am I Entitled to When I Work Greater than 8 Hours between Two Calendar Days in a Single "Shift?"

The Short Answer: overtime. 

If you work from 8:00 pm to 8:00 am the following day. Lets call them calendar days 1 and 2. 

Calendar Day 1: 8:00 pm to 12:00 am = four hours of work. At $30 an hour this is $120 of compensation owed to the employee. 

Calendar Day 2: 12:00 am to 8:00 am = eight hours of work. At $30 an hour, this is $240 of compensation owed to the employee. 

TOTAL: Under the myth of the California "workday," the employee will earn $360 for the shift between two calendar workdays. 

This will be interpreted by the Courts as a 12 hour shift. Lets take a look at how this should actually be calculated under lawful employment practices. 

Calendar Day 1: 8:00 pm to 12:00 am = four hours of work. At $30 an hour this is $120 of compensation owed to the employee. 

Calendar Day 2: 12:00 am to 4:00 am = four hours of work. At $30 an hour, this is $120 of compensation owed to the employee. 

Calendar Day 2 with Overtime: From 4:00 am to 8:00 am, the employee was entitled to 4 hours of overtime. At $45 an hour, an $180 of compensation is owed to the employee for this period of time. 

TOTAL: $420 of compensation is owed for this shift. That is a difference of $60!! Now multiple that by 21 shifts in a month, and your employer has robbed you of $1,260, or over $15,000 in a single year. 

Meal Periods (Lunch Break)

Some employers take this a step further, and even deny one or both of the lunch breaks you are entitled to since they see lunch periods as only required period to the fifth hour of work in a single "California workday" 

As Missing a lunch break requires an employer to provide you what is called a meal period premium of on hour at your regular rate of pay, you may have been entitled to an additional $30 at the above example's hourly rate. In a single month that is an additional $630; or another $7,500+ over the course of a year. You can apply this same concept to the mandatory rest periods you were not provided. 

But As Security, I Am an Independent Contractor. I Know I Don't Get Overtime. Right?

That depends if you were misclassified as an Independent Contractor and you are of course entitled to overtime. 

Security companies are notorious for misclassification of employees as independent contractors for the sole purpose of denying overtime and other benefits. 

The California Workday has to Start and End at Sometime right?

Employers are free to start and end their workday and workweek as they please, but there must be a bona fide legitimate business purpose to create a work day that denies employees their overtime rights. The Court in Seymore v. Metson Marine, Inc. (2011) 194 Cal.App.4th 361 fond that a workweek that denied overtime to ship farers was a corrupt employment practice. The Copany argued that they chose their workweek to conform to the standard business days and hours that their adminstrative staff worked. The Court rejected this argument stating that is not a good reason for using the same workweek definition for the ship faring employees resulting in them losing overtime pay. 

In Jakosalem v. Air Serv Corp., Case No. 13-cv-05944-SI (N.D. Cal. 2014) the district court held that “[v]ague references to concerns regarding the administrability of maintaining more than one workday” did not constitute a bona fide business reason for applying a workday definition that denied employees overtime pay. And in Henry v. Home Depot USA, Inc., Case No. 14-cv-04858-JST (N.D. Cal. 2016), the court held that the fact that 90% of employees worked during the applicable “workday” and that the workday was chosen based on customer demands did not meet the employer's burden to justify not paying overtime to night shift employees.

This is Happening to Me. What Can I Do?

First you should provide your employer a chance to correct their employment practices by informing them of the correct state of the law. If they continue to fail to afford you overtime for your overnight shifts, then contact an attorney at Miller Wilmers APC, a Los Angeles, California based law firm to get back what the employer has stolen from you.