Workers want longer days, shorter weeks? Lower hourly pay may dodge OT obligations

Sometimes, employees prefer to work longer than eight hours a day in exchange for more days off. Ordinarily, changing schedules to accommodate such a request would mean paying overtime for the additional hours in excess of eight per day under California law.

But now, in a unique case, the 9th Circuit Court of Appeals has ruled that, in limited circumstances, changing the hourly rate for those who want the longer shifts doesn’t violate the law, as long as the change doesn’t affect the employees’ pay.

Recent case: Nurse Louise Parth sued the Pomona Valley Memorial Hospital on behalf of herself and other similarly situated nurses, alleging the hospital violated wage-and-hour laws.

She claimed nurses who chose to work 12-hour shifts instead of eight-hour shifts received a lower rate of pay per hour, and that lowering their hourly rate amounted to a way to avoid paying extra for overtime hours.

The court disagreed. It noted that the nurses union had actually bargained for the change, and that it didn’t result in wages below the minimum wage. It was a legal mechanism for the hospital to maintain its labor budget at the same level as before the nurses requested the longer shifts, not a sneaky way for it to avoid overtime. (Parth v. Pomona Valley Hospital Medical Center, No. 08-55022, 9th Cir., 2009)

Final note: Talk to your attorney before making any such change.