Many California employers are not aware that requiring employees to work more than one shift in a day, or including a significant break in a workday, can trigger a penalty. Specifically, each Wage Order issued by the Industrial Welfare Commission includes a provision which states “[w]hen an employee works a split shift, one (1) hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday”. A “split shift” is defined as “a work schedule which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.”

Some employers believe that the split-shift rule can be avoided simply by labeling a long break as a meal break. However, California’s Division of Labor Standards Enforcement has long held that a bona fide meal break is one that does not exceed one hour in length. Thus, any interruption exceeding one hour will give rise to a split-shift situation.

The split-shift payment requirement does not apply to workers who reside at their place of employment, nor does it apply to employees who are exempt from overtime or when an employee requests the break. Further, the California Court of Appeal in Aleman v. AirTouch Cellular held that employers who pay employees at a rate higher than the minimum wage are entitled to credit the amount paid over the minimum wage against the split-shift pay requirement. Accordingly and for example, an employee who works a split shift of 8 hours and is paid $10 per hour would not be entitled to the an extra hour of pay at the minimum wage because the $80 that the employee will be paid for that day is more than the current split-shift requirement of $72 (8 hours at the current California minimum wage of $8 an hour, plus the $8 split-shift premium pay equals $72). Employers should keep in mind, however, that California will be raising its minimum wage to $9 an hour on July 1, 2014, and to $10 an hour on January 1, 2016.