Los Angeles County Super. Ct. No. BC394708 ORIGINAL PROCEEDINGS in mandate. Ann I. Jones, Judge. Petition denied and remanded with directions.
The opinion of the court was delivered by: Croskey, Acting P. J.
CERTIFIED FOR PUBLICATION
Michael J. Holland, David Richardson and Geraldine Evans filed a class action complaint against Securitas Security Services USA, Inc. (Securitas), alleging wage and hour violations. Securitas moved for summary adjudication of the second count for nonpayment of mandatory split-shift pay, arguing that plaintiffs working consecutive overnight shifts that are not interrupted by unpaid, non-working periods do not work split shifts and therefore are not entitled to split-shift pay under the applicable wage order. The trial court denied the motion. Securitas challenges the denial.
We conclude that employees working consecutive overnight shifts that are not interrupted by unpaid, non-working periods do not work split shifts, as defined in the Industrial Wage Commission's wage order No. 4-2001 (Cal. Code Regs., tit. 8, § 11040), commonly known as Wage Order No. 4. Securitas is not entitled to summary adjudication, however, because it failed to show that plaintiffs have not worked split shifts in other circumstances falling within the wage order definition. We therefore will deny the petition and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are currently or were formerly employed by Securitas as security guards or field supervisors. Plaintiffs sometimes work night shifts beginning one calendar day and ending the next, sometimes in excess of eight hours. Their work schedules and the number of hours worked vary somewhat from day to day. Securitas has established plaintiffs' workday as beginning at midnight and ending the following midnight, with the result that their shifts sometimes are divided between two workdays.
Plaintiffs filed a class action complaint against Securitas in July 2008 and filed a second amended complaint in December 2009.*fn1 Plaintiffs allege several counts for wage and hour violations. They allege in their second count that Securitas failed to pay mandatory split-shift pay.
Securitas moved for summary adjudication of the second count only, arguing that plaintiffs are not entitled to split-shift pay because they do not work "split shifts" as defined in Wage Order No. 4. Securitas argued that an uninterrupted work shift that spans midnight and falls in two calendar days and two workdays is not a split shift, and that a split shift does not occur if an employee ends such an overnight shift in the morning and begins another overnight shift late in the evening of the same workday. Plaintiffs argued in opposition that a split shift occurs whenever an employee works two nonconsecutive periods in the same workday, such as when a shift begins on one workday and ends on another and the employee then returns to work several hours later on the second workday. Plaintiffs also argued that Securitas had failed to pay split-shift pay not only where the employee worked shifts spanning midnight on consecutive days, but also where the employee worked nonconsecutive periods in the same workday without working through midnight.
The trial court concluded that a "split shift" as defined in Wage Order No. 4 occurs whenever an employee works two nonconsecutive periods of time in the same workday. The court rejected Securitas's interpretation of a "split shift," concluding that Securitas had failed to show that the plaintiffs were not entitled to split-shift pay, and therefore denied the motion for summary adjudication.
Securitas petitioned this court for a writ of mandate or other extraordinary relief. We issued an order stating that we were considering the issuance of a peremptory writ of mandate in the first instance directing the trial court to vacate its order denying the motion for summary adjudication and enter a new order granting the motion. We granted the trial court the power and jurisdiction to reconsider and change its order and invited Securitas to file an opposition to the issuance of a peremptory writ of mandate in the event that the trial court did not change its order. After the trial court failed to change its order, Securitas filed an opposition and plaintiffs filed a reply. In light of the issues raised by the parties, we issued an order to show cause.
Securitas contends employees who work uninterrupted overnight shifts on consecutive days do not work a "split shift" and are not entitled to split-shift pay. As we explain, we agree with Securitas. The trial court's conclusion to the contrary was error.