Wage Order 5 regulates
wages, hours, and working conditions in the “public housekeeping industry,” which
includes hospitals, sanitariums, rest homes, childcare facilities, homes for
the aged, and the like. Nurses in
medical/surgical unit voted to adopt a 3/12 alternative workweek schedule, or
three 12-hour days, as authorized by this wage order—and one nurse would later
challenge its overtime provisions.
Nurse Agrees to Alternative
Workweek
When Lancaster hired
registered nurse Parminder Singh, he signed an agreement binding him to the alternative
workweek terms, including: the regular pay rate for work performed within the
3/12 schedule; time-and-a-half for work performed beyond 40 hours in the
workweek; and double time for work in excess of 12 hours in a workday. Two
years later, Singh resigned, citing circumstances beyond his control.
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
Employee Sues for Back
Overtime
Singh then filed a class
action lawsuit against the hospital for unpaid overtime, contending that the
hospital was required to pay nurses for all hours worked on days other than
those scheduled under the alternative workweek schedule. He pointed to the
general overtime provision in the wage order (section 3(B)(1)), stating that
employees who adopt an alternative workweek must be paid time-and-a-half for
all work performed in any workday beyond the regular schedule established by
the agreement, up to 12 hours a day or beyond 40 hours per week (and double
time for hours in excess of 12 a day).
Thus, Singh charged,
when he worked on a nonregularly scheduled day, he was entitled to overtime for
hours 37, 38, 39, and 40 in the workweek (note that the alternative workweek
agreement already guaranteed him overtime for hours beyond 40). So, for example,
if he worked his usual 3/12 workweek (for a total of 36 hours) and then from 9
a.m. to noon on a nonregularly scheduled day, he claimed he should be paid
overtime for those extra three hours, even though he still had not put in 40
for the workweek.
Employer Says Special
Overtime Rules Apply
a 3/12 alternative schedule, an employer only has to pay time-and-a-half after
40 hours of work, not for hours 37 to 40. The wage order section Singh relied
on, the hospital argued, applied to alternative workweeks other than those for
healthcare workers. The applicable provision here, argued
order, which sets forth special terms for alternative workweek schedules in the
healthcare industry.
The trial court sided
with
ruling that section 3(B)(8) applied, making overtime due only after 40 hours of
work in a week or more than 12 hours in a day.
Overtime Only After 40
Hours
Now a
lower court’s ruling that section 3(B)(8) controls overtime requirements for
healthcare industry employees on an alternative workweek schedule.1
The appeals court
explained that a 1986 version of Wage Order 5 did in fact entitle hospital
workers on a 3/12 schedule to time-and-a-half for the first eight hours on an
additional workday and double time for all hours beyond that. In 1993, however,
the Industrial Welfare Commission (IWC) amended the wage order, eliminating
overtime pay for hours 37 to 40 worked by these employees. In 2001, the IWC
adopted the current version of Wage Order 5, retaining the overtime principles from
the 1993 version.
The court went on to
find that the plain and unambiguous language of section 3(B)(8) of the current wage
order only requires overtime after 40 hours of work in a week—or more than 12
hours in a day—for healthcare employees who adopt a 3/12 schedule. The section
Singh relied on—3(B)(1)—only applies to alternative workweeks other than those
set up under 3(B)(8).
Avoiding Disputes
If your workers have
voted to adopt an alternative workweek, whether a 4/10 or 3/12, here are two
tips to help avoid lawsuits over overtime disputes:
1. Review your
obligations. Make sure you understand when overtime is due for time worked on regularly
scheduled workdays, as well as for hours worked on additional days. Your
overtime
obligations will vary
depending on the type of alternative work schedule in place and which wage order
applies to your workers. You can find your wage order online at www.dir.ca.gov/IWC/WageOrderIndustries.htm.
2. Keep records. Maintain thorough
records of time worked.
_
1 Singh v. Superior Court
(UHS of Delaware, Inc.),
Court of Appeals (Dist. 2) No. B187797, 2006