"Split shift." So easy to say, but surprisingly hard to define in a way that doesn't require a list of demonstrative examples and exclusions. In Securitas Security Services USA, Inc. v. Superior Court (Holland) (July 7, 2011), the Court of Appeal (Second Appellate District, Division Three) issued an order to show cause to consider issues related to the interaction of the split shift definiion in Industrial Wage Commission‟s wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040) and the declaration of a "workday" by an employer (security guards worked shifts beginning in one "workday" and continuing into the next). The trial court rejected the Securitas definition of "split shift" and denied its motion for summary judgment. The Court of Appeal disagreed with the trial court's analysis, but agreed that summary judgment could not be granted.
For reference, the Court set forth the definitions at issue:
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.” (Cal. Code Regs., tit. 8, § 11040, subd. 2(Q).)
A “shift” is defined as “designated hours of work by an employee, with a designated beginning time and quitting time.” (Cal. Code Regs., tit. 8, § 11040, subd. 2(P).) A “workday” is defined as “any consecutive 24-hour period beginning at the same time each calendar day.” (Id., subd. 2(T); see also Lab. Code, § 500, subd. (a).)
Slip op., at 6. Jumping to the end of the story, the Court noted that "work schedule" is not tied to the definition of "workday." The Court went with its common sense construction of the term: "In the context of a provision establishing minimum wages to compensate employees who are required to return to work after an interruption in their 'work schedule,' we believe that a 'work schedule' simply means an employee's designated working hours or periods of work." Slip op., at 7. Thus, consecutive overnight shifts that overlap a definied "workday" do not create split shifts because the "shift" is a continguous block, even though it overlaps a "workday."
The Court then discussed the policies behind overtime pay, split shift premiums, meal period premiums, and the like, quoting extensively from Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007).
After all that, the Court noted that Securitas failed to prove that the plaintiffs didn't work actual split shifts at other times.
Now we know one circumstance that isn't a split shift. We are still left, however, without complete guidance as to what qualifies as a bona fide split shift. Can an employer give its employees an hour and a half lunch without creating a split shift? Can it give two hour lunches? How many hours have to elapse between the end of one work period before it is viewed as a distinct and complete "shift?" Bonus answer: probably more than 1 and less than 24.