© 2017 Michael Livolsi Law. Disclaimers.

SPLIT SHIFT, SPREAD OF HOURS AND CALL-IN PAY

February 28, 2017

These unintuitive additions to the wage and hour law are often overlooked.  By my estimates, there are hundreds of millions of dollars in un-asserted wage and hour claims walking around the country every day based on the failure to meet these requirements.  A good number of software companies do not account for this in their operations, and a good number of management companies let this mandatory pay slip through the cracks. 

However, these doctrines are relatively simple, and a deficiency in payment can always be avoided by paying careful attention to scheduling. 

 

Spread of hours requires an employer to add one hour, paid at the basic minimum hourly wage rate, to the paycheck of any employee who, in one day, works more than 10 hours, whether consecutive or non-consecutive.  Remember, this is not time actually worked, so overtime rates do not apply even if all or part of the shift is paid in overtime. 

 

If an employee works a split shift, meaning: a) he or she works for one shift, leaves and the end of that shift, and returns to work for a second shift, or b) any portion thereof in the same day, the employer must also add one hour paid at the basic minimum hourly wage rate to the employee’s paycheck.  Remember this is not time actually worked, so it is unnecessary to pay this at overtime rates, even if overtime is being paid for hours in one or more of these shifts. 

 

If both a) and b) happen simultaneously, only one minimum wage hour need be added to the paycheck.  Again, overtime rates do not apply to this one added hour, as it is not time actually worked.  This is a simple rule to follow so long as careful attention is paid to scheduling and hour calculations. 

 

Call-in pay is also simple, although slightly more complicated.  Call-in pay should not be confused with on-call pay, which is dealt with in a separate post.  If an employee “by request or permission of the employer” reports for duty on any day, whether or not assigned to work on that day, the employee must be paid either: A) at least four hours, or B) the number of hours in the regularly scheduled shift, whichever is less.  The pay for this time must be made at the basic minimum hourly wage.  This rule contemplates that the employee does not work the full four hours or the regularly scheduled shift.  For the time actually worked, the employee must be paid any applicable overtime.  For time not worked, the employee must be paid only basic minimum wage. 

 

There are some ambiguities in this rule which must be considered on a case by case basis.  The question of what constitutes a “regularly scheduled shift” causes some of us to become nostalgic for simpler times, and somewhat frustrated at the naiveté of the drafters of this rule.  Questions have arisen across the country about whether things such as staff meetings count as regularly scheduled shifts.  Some judges have suggested that weekly staff meetings do count, while others have suggested that monthly staff meetings do not count.  What if an employee simply is mistaken about the schedule, shows up and starts working, and the on-duty manager identifies the mistake and immediately sends the employee home within minutes?  Is this a scenario where call-in pay is required?  Depending on the circumstances, and depending on whether state or federal law is likely to apply, maybe yes and maybe no.  In order to answer questions like this, you really must consult with an attorney knowledgeable in wage and hour law, as well as wage and hour litigation. 

 

Furthermore, the application of the rule depends on what industry you are in.  For example, if you are in the hospitality industry, an entirely different set of rules applies to you.  For actual attendance time, the employee’s regular or overtime rate, whichever is applicable, minus customary and usual tip credits applies.  For the balance, minimum hourly rates apply with no tip credit subtracted.  The amounts of pay also differ – three hours for one shift, six hours for two shifts totaling six hours or less, and eight hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.  

 

In a later post, we will discuss the interplay and distinctions between call-in pay and compensable v. non-compensable preliminary time. 

 

It is an old and a true maxim that an ounce of prevention is worth a pound of cure.  Questions of call in pay reimbursement are often fact specific and depend on a number of factors which cannot be made clear by reliance on the statute or regulations alone.  Rather, you should work with your attorney to obtain quick answers to these questions, as well as a long term system which contemplates your regular scheduling practices to avoid any potential liability for a wage and hour violation based on the call in pay rule.  

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