For some types of work, businesses might want their employees to work four ten-hour shifts each week rather than the traditional five eight-hour shifts. In Nevada, 4-10 shifts raise a question of whether employers need to pay overtime to employees who work more than eight hours in one day.
Overtime Exception for 4-10 Shifts
Under Nevada law, when employees earn less than 1.5 times the minimum wage employers must pay them overtime whenever they work more than 8 hours in any workday. However, this overtime requirement doesn’t apply if by “mutual agreement” the employee agrees to work four ten-hour shifts in one work week. Ideally, employers who want to use a 4-10 shift policy should get this “mutual agreement” in writing.
Keep in mind that under both Nevada and federal law employees who are not exempt from overtime laws must still be paid overtime for any hours worked over 40 hours in a work week.
Is Overtime Required if the Employee Doesn’t Complete All Four Ten-Hour Shifts?
For various reasons, employees who have agreed to work a 4-10 schedule will not complete all four shifts in a week. In this happens, does the employer have to pay overtime for the days in which an employee does work more than 8 hours?
The Nevada Labor Commissioner has issued an advisory opinion that addresses this question. According to the Commissioner, when this occurs the employer isn’t required to pay overtime for hours worked in excess of eight hours in a work day if the employee doesn’t complete the full scheduled 4-10 shifts:
- Due to a decision made by the employee for reasons within the employee’s control or to the employee’s benefit; or
- Due to circumstances that are out of the employer’s control, including, but not limited to, inclement weather or other circumstances that make the employee’s scheduled work impossible or impracticable.
As an example, if an employee works three ten-hour shifts during a work week but only works six hours during the fourth scheduled shift because the employee chooses to leave early for a family vacation, then the employer would not need to pay overtime for the two extra hours worked each day during the first three shifts. However, if the employer chooses to send the employee home early, or the employee doesn’t complete all 4-10 shifts because of any other decision within the employer’s control, then the employer would be required to pay overtime for any day during the week in which the employee worked more than eight hours.
A couple final points: if an employee doesn’t work a scheduled four-ten shift due to circumstances outside of the employer’s control, then an employer may, but is not required to, offer a make-up or replacement shift for the missed scheduled time. The employee, however, is not obligated to work the offered make-up shift. The Labor Commissioner has also said it will not penalize an employer who wants to pay an employee for a full 40 hour work week, even if the employee worked fewer than 40 hours.
If your business needs to draft a 4-10 shift policy and agreement, or if you would like me to review your current policy, then feel free to contact me.
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