Long 12-hour shifts, no overtime pay, and no breaks? Time to stop the abuse!

KINDRED Healthcare Incorporated, a healthcare services company that operates hospitals, nursing centers, and rehabilitation services nationwide, was sued by its health care employees in California. The employees alleged that Kindred violated labor laws by failing to pay the correct overtime rate, failing to provide meal periods, and failing to give accurate itemized wage statements to its employees.
In March 2013, the employees obtained a major victory when a federal judge in Los Angeles granted them class certification. This means that the case could be tried as a group or class, the outcome of which can affect thousands of employees. However, rather than proceed to trial, the parties agreed to a settlement. Kindred will pay the employees a total of $16.5 million for back wages, penalties, and attorneys’ fees. The court has preliminarily approved this settlement.
Most of the violations experienced by Kindred’s employees in this case are typical of the issues faced by employees who work on Alternative Workweek Schedules (AWS). AWS agreements allow employers to legally schedule employees to work up to 12 hours per day within a 40-hour workweek without paying them overtime pay. Employees who work on AWS are vulnerable to exploitation and need to pay attention to the following issues:
How should they be paid if they work outside the AWS shift:
All work beyond the schedule established by the AWS agreement up to 12 hrs a day or beyond 40 hours per week shall be paid “time and a half.”  All work performed beyond 12 hours per day shall be paid “double time.” If the employee already worked three 12-hours shifts for the week, and was asked to work an additional 12-hour shift on a fourth day, then the employee’s hours worked in excess of 8 hours for the fourth day must be paid double time.
How should they be paid if they work lesser hours than on the aws shift?
In the Kindred case, the employees were “flexed off.” This means the employer required employees to work fewer hours than those in their AWS agreement. If so, the employer must pay a short-shift penalty. Thus, the “flexed off” employee must be paid time and a half for working more than 8 hours for the day but less than the 10 or 12 hours required by the AWS. With the reduced hours, the workday is treated as if it is not part of the AWS agreement and all work beyond 8 hours must be paid at the overtime rate.
How should their overtime pay be computed if they are paid a shift differential or shift bonus?
A shift differential pay, for working undesirable hours (such as a night shift), is considered part of wages and included in computing the overtime rate.  Example: Employee is paid $30 per hour plus a $3 per hour shift differential. If the employee worked overtime, the differential pay of $3 per hour is included in computing the overtime rate. Thus, the regular rate should be $33 per hour. For time and a half, the overtime rate is $49.50/hour, not $45 per hour.
How many meal breaks should they get during a 10- or 12- hour shift?
Non-exempt employees are entitled to a 30-minute uninterrupted meal period for every 5 hours of work. Employees on a 12-hour shift are entitled to a second 30-minute meal period, which can be waived, but only in writing. If such a meal period is not provided, or not provided on time, the employee must be paid one additional hour of pay at the employee’s regular rate for each day the meal break is missed.  Missed meal periods also raise the issue of overtime pay.
How many rest breaks should they get during a 10- or 12- hour shift?
Employees who work 12 hours per day are also entitled to at least three 10-minute rest breaks. If employee missed any of these rest breaks, they are entitled to an additional one hour pay at their regular rate.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.