An Introduction to Shift Work Policies
Employers need to be aware of the law around working time and the maximum time between shifts. If an employee has finished work at 4:30, an employer should not roster them back on the next day at 8 am or even 9 am. The difference between leaving at 5 pm and showing up at 8 am the next morning, and leaving at 5 pm and showing up at 12 pm the next day, is a fundamental distinction in working time legislation.
Section 69 of the Employment Rights Act 1996 ("The Act") outlines the statutory rights of employees to daily and weekly rest breaks. 69(1) states that a worker is entitled to a period of daily rest. Subsection (2) further states that the period referred to in subsection (1) must be a period of not less than 11 consecutive hours in the case of daily rest, or, in the case of a rest period each week, a period of not less than 24 consecutive hours. It further states that the entitlement to weekly rest does apply where the worker is permitted to take a compensatory rest period.
Employees are entitled to have a minimum break of 11 hours between the end of one shift and the start of the next . In some circumstances, employers may be able to rely on a derogation from the 11 hour rule by agreement with employees as long as collective agreements are in place for the negotiated derogation.
A derogation is a contractual exemption from any statutory requirement, i.e. under regulation 21 of the Working Time Regulations 1998 ("WTR"), there is a provision for derogation from the working time limits. If all relevant staff agree, either directly or through a collective agreement, there may be a derogation if the minimum requirements are not met, i.e. no minimum breaks or maximum hours worked per week are met.
As stated, employees need to understand how derogations work, and how they apply to them. As part of the contract, employees should be made aware that the rules on minimum breaks and maximum hours will not be in place. The derogation under the WTR can only apply if it allows members of staff to work longer hours than the 48 hours a week, unless the derogation is qualified by certain criteria. The qualified criteria include:
Federal Legislation on Shift Gaps
The Fair Labor Standards Act (FLSA) governs the payment of wages and overtime to employees engaged in commerce and similar enterprises. While the FLSA "does not require employers to provide fringe benefits of any type, including premium pay for evening or rotating shift work," Davis v. City of Newark, 289 F. Supp. 2d 505, 509 (D.N.J. 2003), employers must comply with any FLSA provisions concerning hours worked or pay due for hours (including time between work shifts). Section 12 of the FLSA requires that an employer pay an employee on a "regular payday designated in advance by the employer" (29 U.S.C. § 211). The term "hours worked" in the FLSA is undefined, but generally encompasses all the time an employee is required to be at his or her "place of work." Work can include "physical and mental exertion" of any kind "controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." IBP, Inc. v. Alcala, 546 U.S. 457, 473, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2006) (internal citations omitted).
State Laws Governing Breaks between Shifts
Some states have adopted their own laws regulating the amount of time that must pass between an employee’s shifts. For example, in Arizona, a new law passed in 2016 requires employers with more than five employees to provide employees with at least 24 hours’ notice before changing work schedules. In Vermont, employees who work more than six consecutive days are entitled to 24 hours rest on the seventh consecutive day—though this requirement does not apply during busy holiday retail periods (generally Thanksgiving through New Year’s Day) of up to an additional two weeks per calendar year. Other states impose more general requirements. For example, California law simply requires employers to afford employees a minimum of 30 days to furnish availability to a work schedule of at least seven days’ notice. Likewise, Illinois, New York, and Oregon require employers to provide certain employees an advance notice of their weekly schedules, but do not impose requirements concerning the intervals between shifts.
Impact on Employee Wellness and Production
One of the key aspects of optimal shift scheduling is providing adequate time between shifts for employees to rest and recuperate. Simply put, the more time employees have to recover from a shift’s toll, the better chance there is that those shifts won’t be mundane and subject to health problems.
Increased employee sick time or higher incidence of workplace injury or illness correlating with less time between shifts is usually not difficult for employers to keep track. For instance, if an employee has scheduled time off each Saturday, this will not be permitted to change so long as the shifts remain consistent in frequency and intensity. There are other, less formal, ways that this time gap shows up as well. For example, take one of the most loved and hated of all occupations: truck drivers. Studies show that truck drivers who work longer shifts, such as 10 hours or more, are at risk for higher incidence of obesity and sleep apnea, which can lead to higher incidence of overall disease or chronic health problems. Besides their direct effect on health, these longer shifts also have been shown to negatively impact productivity, leading to delayed shipments and costly fines. As of 2017, the average trucker made $21.24 per hour and had a turnover rate of 73%. This compares to a turnover of 40% in the next highest occupation, manufacturing (National Transportation Institute, 2017).
The fact that productivity and health are so interconnected is another reason why it is critical for management to afford appropriate time in between shifts for healthy eating, exercise and recreation. Violating this practice only leads to more overall employer costs in hiring and training, as well as diminished workplace morale.
Employer Obligations and Recommendations
The Fair Labor Standards Act ("FLSA") does not impose a limitation on the number of hours (or shifts) that an employer may require of an employee. However, there are certain restrictions or regulations that may affect this requirement.
FLSA Because the FLSA does not impose a shift limit, it is permissible for an employer to schedule employees on back-to-back 12-hour shifts, or even 24-hour shifts. However, certain third-party organizations such as the Occupational Safety and Health Administration ("OSHA") have imposed such limits as being "inappropriate." In practice, many employers do not utilize back-to-back shifts in order to avoid operational issues such as fatigue (discussed here) and increased costs (discussed here).
California / New York There is statutory limitation on hours worked in the FLSA’s types of jobs in the states of California and New York. California Labor Laws require that an employee who works more than six hours in a workday receive a 30-minute meal break. If the employer fails to provide the required meal breaks, California law states the employee is entitled to one additional hour of pay at his or her regular rate for every day the meal break is not provided (if he employee worked 10 hours or more during that day, he is entitled to two back-to-back meal breaks, and therefore entitled to receive an additional hours pay for failing to provide two breaks).
New York state law also requires an employer to provide employees with meal breaks, generally one hour for five or more consecutive hours of work. However, this only applies to (i) manufacturing employees, and (ii) certain non-manufacturing employees if it is customary in their industry or in the locality. Even if an employer is not required to provide a meal break to its employees, if the company policy makes such breaks a part of operations, employees must be paid for the time spent "on duty" during the break (see, e.g., N.Y. Lab. Law § 162).
Anti-Fatigue Policies It is becoming increasingly common for employers and industry groups to adopt "anti-fatigue" policies in an effort to balance operational output while maintaining employee safety and well-being. The National Transportation Safety Board ("NTSB") released a report regarding "Rest and Fatigue Risk Management in Aviation" in 2012, and recommended that the FAA (Federal Aviation Administration) "establish a requirement for passenger airlines to implement crew scheduling concepts that are known to reduce crew fatigue risk." Since then, the FAA has raised the maximum flight time beyond which a two-pilot crew is not allowed to fly, and has implemented limitations on flight and duty time.
Many industries have adopted similar anti-fatigue policies. For example, the United Steelworkers and U.S. Steel adopted a "Joint Wellness Responsibility Agreement" requiring site specific wellness committees that utilize an "enhanced fatigue management program." The program includes a number of requirements, such as an eight-hour "off-duty" period between shifts for all employees, and a reduction in overtime hours to no more than 12 hours. Similar requirements were also adopted by U.S. Steel and the USW for the United States Blast Furnace and Coke Oven Industry, covering approximately 7,000 organized workers. The health and labor unions are currently utilizing these agreements to enforce such restrictions.
Furthermore, OSHA has stated its intention to issue a proposed regulation establishing limits for working hours in the oil and gas industry, and potentially other industries dealing with highly hazardous materials.
Regardless of whether such policies become law, most experts agree that longer hours increase the likelihood of fatigue-related incidents. Therefore, employers should determine whether their policies and schedules are legally compliant and align with industry best practices. Employers can achieve this by (1) instituting company policies reducing the length of shifts (whether over a single day or multi-day shifts), (2) agreeing to anti-fatigue laws and regulations as they are adopted in their industry, (3) adopting best practices utilized in other industries, and (4) continually seeking industry best practices for labor stability in the workplace.
Case Examples and Judicial Insights
Previous cases have addressed when employees are required to be paid for time in between shifts including when employees return to work, travel time, and in the retail industry. In U.S. v. Rosenwasser, 321 U.S. 675, 68 S. Ct 522 (1944), the court wrote "the [Portal-to-Portal] Act did not alter the FLSA’s definition of workweek. That term is defined as the period during which an employee is required to be on duty . . ." In Martin v. Wood Kee Clean, the Fifth Circuit held that a janitor who was required to carry tools at night and check for fires, etc., in the morning before his shift, was working. See also Brennan v. Donofrio Furniture Inc., 488 F. 2d 216 (6th Cir. 1973) (time between pre-shift wash work and post-shift shop work and travel time are compensable based on the plaintiffs’ testimony and the nature of the employer’s business); Perlin v. Time Ins. Co., 382 F. Supp. 2d 861, 870 (E.D.Tex. 2005) (holding, in a "call center-type" case, unchanging rule of FLSA: "if an employer ‘urgent need’ requires him to be ready at the employer’s premises , the employee is entitled to compensation for time spent waiting."); Pabst Packing Corp. v. NLRB, 365 F. 2d 558 (5th Cir. 1966) (noting the significance of the location of the shift between ‘between shift’ work and ‘post-shift’ work). While it is difficult to speculate whether in between shift work in the health and beauty context would be considered compensable time, some cases are clear. One such case is Savanna v. Mistras Group Inc., 10 F.Supp.3d. 232, 245 (S.D.N.Y.). In that case, a hair salon systematized the procedure by which its investigators dressed up like clients, requested detailed, nonempirical surveys of employee or company responses, and then sent those surveys to other investigators for analysis. Savanna, PIN 13-6-083. Without the appropriate employees being on the employer’s premises, it would be less like "between shift" work and more like "post-shift" work. As cases evolve, and employers attempt to reduce liability for time worked in between shifts, it is important to pay attention to detail.
Implications of Violations
For those employers who fail to comply with the law with respect to the time that must be allowed to pass between work shifts, there are significant financial repercussions. However, the consequences of these failures often exceed the financial realm. This is because when an employer fails to pay an employee for required work time or fails to provide an hour of pay for shifts where less than 11 hours will pass until the next shift begins, it creates a liability to the employees and to other employers who are doing what is required by the law.
With respect to the financial penalties, two primary penalties apply to violations of the "time between shifts" law. First, the employee can institute a private lawsuit for violation of the law. In such a lawsuit, the employee can recover the one hour of premium wages plus any lost wages suffered because of lack of compliance with the law. The employee also is entitled to recover reasonable attorneys’ fees and costs incurred as a result of bringing the lawsuit. As a result, a violation of the law can become an expensive proposition when one considers the excessive attorneys’ fees often incurred to recover the one hour intended to be provided by the statute.
Second, a California district attorney may institute criminal proceedings under the Labor Code against employers who have failed to pay employees the one hour premium pay mandated by the law. These violations may constitute an infraction or a misdemeanor, depending on the number of violations. In either case, employers may be fined $25 for each initial offense and $50 for each subsequent offense. A misdemeanor violation can result in a fine of up to $1,000 for each violation and/or imprisonment in a county jail for a period not exceeding six months.
Beyond the monetary penalties imposed upon those who fail to comply with the law, the reputational damage done to employers following such violations can be significant. There are two primary bases for this reputational damage. The first comes from the public knowledge that an employer has failed to follow the law with respect to rest and meal periods. This may provide cause for customers, suppliers, and others to take a closer look at whether or not they want to continue their business relationship with an employer. The second basis is that given the propensity of plaintiff’s employment attorneys to bring lawsuits for violations of the "time between shifts" law, employers can find themselves facing numerous lawsuits bringing expensive and disruptive litigation.
Guidance for Workers
If you believe your rights are being violated regarding work shift hours and breaks, the best way to seek redress is to first contact your employer. As employment law is complicated, consult with an experienced lawyer who can help you with this matter. Make sure that you feel comfortable approaching your human resources department. An employee who feels their privacy has been violated or has been retaliated against for filing a complaint may be more hesitant to approach human resources. This is why it is recommended that an employee who feels their rights have been violated consult a qualified employment lawyer before contacting their employer. An employment lawyer can help you with formulating your concerns in a manner that best protects your rights as an employee. To better ensure your rights as an employee are protected, you should always keep records of your hours worked, the shifts you have worked, and the breaks you have taken. Keeping these records will ensure that you have access to the information necessary to file a claim in the event your employer violates your rights. An experienced employment lawyer can help you better organize this information if you believe your employer has violated your rights. Employees should also keep track of all communications with their employer, as well as communications with any relevant government agencies pertaining to the matter. For example, if the employee filed a complaint regarding the issue with the provincial or territorial labour department, the employee should keep a copy of all communications with the department.
Wrap-Up: Compliance and Workplace Considerations
We know that the governing law is ambiguous. We know that rules are unclear – moreso to many defense-side counsel than to plaintiffs’ lawyers – when it comes to the time between shifts. While the Center for Law and Social Policy thinks the law is clear, other authorities are not so sure. So that leaves employer’s counsel needing to walk a tightrope of compliance. That is not just because counsel has a duty, as a member of the bar, to police the law. Rather, it’s the practical need to have the client be able to comply with what the law requires. And yet even more, to be able to anticipate the ebb and flow of the regulatory sea or recognize some interpretation as an "outlier," should that be the case, or to develop a sound defense should the client be hit by a rogue plaintiff’s lawyer or an unthinking enforcement regime.
The 13- and 25-hour rule commands particular attention. How long a recovery time should be between work shifts? Do you dare create a bright-line rule over such an important safety concern? Do you allow less time and hope that the courts are sympathetic if a plaintiff argues that they passed out behind the wheel? With a shortage of cases on the question, and a lack of case law in 12 states (plus federal law), and a patchwork of opinions where there is case law, employers will have to do their best predict whether a 13-hour separation is enough, and whether sometimes allowing an employee to work back-to-back shifts could slip by.
Employers must also give close attention to whether the bar is set higher under state law – i.e. is the state’s recovery time to be measured as the time between shifts or the time between the end of one shift and the beginning of the next? The answer could make a significant difference in how, say, a belabored truck driver recovers his fatigue .
We also examined the unusual practice of giving a "split shift." You would think this would be nearly as dubious as a certainty: one third of the country says that a split shift is only legal under some circumstances, and the remainder says that the split shift is per se illegal. Again, no bright-line test exists, so you might as well toss a coin as you decide whether, say, to have a shift time that bounces back and forth from the second half of the day into the first half of the night.
But at least there are cases interpreting the law on the topic. So, when it comes to the law in the states we have examined, California, New Jersey, New York and Texas, and then federally, although there may be no bright line rule, we have some clearer idea of where the borderlines have been drawn, even if, given the variability, they still resemble House of Usher.
On the other hand, is the risk worth the reward for being on the razor’s edge of the law? There are millions of dollars at stake in damages and fines. Even supposing that such claims mutate into a class action or multi-plaintiff complaints, the costs could be significant. Settle and pay attorney’s fees. Lose and you could incur substantial damage awards. So why trifle with the law? You need to either pay them off, or ensure that no future plaintiffs have claims, while not creating new ones for anyone else in the process.
In short, meeting employer needs and complying with the law demand understanding the law, but this is dosed with an equal metric; understanding which way the wind is already blowing in your courts. You cannot anticipate the twists of the law, but you want to avoid being blindsided too often. In this unusual state of the law, the consideration is not black-and-white; it is multiple shades of gray.