A recent update on the California Labor Commissioner’s website signals a change in interpretation about how employees must be paid when they work a split shift. The updated information states that the split shift premium owed is one hour at the state minimum wage, or the local minimum wage if there is one, whichever is greater. Historically, the split shift premium has been based only on the statewide minimum wage.
A split shift is any two distinct work periods separated by more than a one hour meal period, unless the split shift is at the request of the employee rather than for the benefit of the employer.
An example of a split shift where the one hour premium might apply is a restaurant employee who is scheduled by her employer to work a lunch shift of three hours from 11:00 a.m. to 2:00 p.m., and then scheduled to return for a dinner shift the same day at 5:00 p.m.
If there is more than one hour between shifts, the employee must receive a premium of one hour’s pay at no less than the state or local minimum wage rate (whichever is higher) for the time between shifts.
However, offsets against that premium may be made, depending on the employee’s hourly rate of pay, as follows:
- For an employee who earns exactly minimum wage, the full hour of split shift premium pay is due.
- For an employee who earns more than minimum wage, the split shift premium requirement is reduced because any money earned over and above the state, or local, minimum wage may be credited towards the employer’s obligation to pay the split shift premium.
The Labor Commissioner’s Office website includes this example of how the amount earned over and above the minimum wage throughout the course of a workday would be credited against the split shift premium:
Question: My regular workday includes a split shift, however, I make $12 per hour and minimum wage is currently $11 per hour. I work six total hours in a workday, so am I entitled to a split shift premium?”
Answer: Yes, because you work six hours, and the minimum wage for your workday that includes a split shift is $77 (six hours times $11 plus an additional $11 for the split shift premium). If you are only paid $72 (six hours times $12), you are due $5 ($77 – $72 = $5) differential for working a split shift.
There has been no change to the IWC Wage Orders that require split shift pay, but the new language on the Frequently Asked Questions page on the Labor Commissioner’s Office website means employers should consult legal counsel to consider whether they should change their pay practices.