Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In February 2011, the California Court of Appeal rejected an employer’s use of an "artificial" workweek where the workweek ran from 12:00 a.m. on Monday to 11:59 p.m. the following Sunday and where the employees worked a 14-day shift from Tuesday to Tuesday.1 In its opinion, the court held that while an employer "may designate any workweek it wishes" it cannot "require its employees to work one workweek, such as from Tuesday noon to Tuesday noon, and designate another workweek, such as Monday to Sunday night, for the purposes of calculating overtime compensation."2
The employer subsequently filed a motion for reconsideration, which was granted, and the court re-issued its opinion on April 14, 2011.3 In its re-issued opinion, the court affirmed its prior decision, rejecting the artificial workweek utilized by the employer.4 The court’s reasoning, however, was significantly modified. Rather than flatly rejecting the artificial workweek, the court acknowledged that an employer may designate a workweek which differs from the work schedules of the employees if it has a bona fide business reason for doing so, "which does not include the primary objective of avoiding the obligations of overtime."5
Instead of a seminal decision initially understood to fundamentally change California employers’ ability to define a workweek, this re-issued decision reaffirms that employers may set workweeks as seven consecutive 24-hour periods that differ from an employee’s shift, so long as there is a bona fide business reason. Nonetheless, the court utilized a fact-based analysis to determine that the employer in this case did not have a bona fide business justification for setting a workweek that differed from the shifts worked by its employees.
While this revised opinion bodes much better for employers than its predecessor, California employers should continue to be cautious in using a workweek that differs from the work schedules of its employees, as such a workweek may be construed as an attempt to avoid overtime obligations. Likewise, use of an artificial workweek or workday may also result in the requirement to pay split-shift differentials under California law.
1 Seymore v. Metson Marine, Inc., 193 Cal. App. 4th 64 (2011) ("Metson 1"), rehearing granted, Depublished (Mar. 25, 2011); subsequent opinion on rehearing at Seymore v. Metson Marine, Inc., 2011 Cal. App. LEXIS 442 (2011) ("Metson 2")
2 Metson 1, 193 Cal. App 4th at 72.
3 Metson 2, 2011 Cal. App. LEXIS 442.
4 Id. at *11.
5 Id. at *9.