Most common in the restaurant industry, employees are called into work for an early shift and then during the lull are asked to leave and a few hours later to return for a second shift. When an employee works two shifts in one day, the employee is entitled to one extra hour of pay at the prevailing minimum wage. Many small employers do not realize this. Failure to pay this required additional one hour of pay can lead to tremendous wage penalties.

That said, in some cases the one hour of pay may in fact not be owed. In Aleman v. Airtouch Cellular, 202 Cal.App.4th 117 (2011), the employee’s claim for split-shift compensation was rejected because every time the employee worked a split shift (a work schedule interrupted by “non-paid, nonworking periods”), the employee was paid a total amount greater than the minimum wage for all hours worked plus one additional hour. Although the employer technically won the lawsuit, the employer was denied an award of attorney’s fees because the employee’s claim were based on California Labor Code § 1194 (failure to pay the minimum wage or legally required overtime). Labor Code § 1194 only permits an award of attorney fees and costs to the “plaintiff – employee,” not to the employer. Labor Code §218.5, on the other hand, permits an award of attorney’s to the “prevailing party” in any action “brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions” if “any party to the action requests attorney’s fees and costs upon the initiation of the action.”