On June 6, 2006, The California Court of Appeal addressed a question of first impression and ruled that section 3(B)(8) of Wage Order 5 regulates overtime pay for health care employees on a 3/12 alternative workweek schedule. For healthcare employers this ruling confirms that employees working under a 3/12 alternative workweek schedule are not entitled to weekly overtime under the law until after 40 hours of work. The appellate court’s ruling in Singh v. Superior Court, No. B187797, (2^nd Dist. Cal. June 6, 2006), followed the position advanced in an amicus brief submitted and argued by Richard J. Simmons and Derek R. Havel of Sheppard Mullin Richter & Hampton on behalf of the California Hospital Association.

 

The plaintiff, Parminder Singh, was employed as a nurse by a hospital in Lancaster. Less than one year before the plaintiff was hired, two thirds of the hospital’s nurses in a work unit voted to have an alternative workweek schedule of three 12-hour days ("3/12"). The nurse signed an agreement in accordance with the adopted alternative workweek schedule at the time he was hired. He was bound by the following terms: the regular rate of pay (regular pay) for work performed within the 3/12 alternative workweek schedule; time and a half pay for work performed beyond 40 hours in the workweek; and double time pay for work in excess of 12 hours in a workday.

 

In August 2003, the nurse resigned. In September 2004, he sued for unpaid overtime for all hours that he worked on days other than those days scheduled by the alternative workweek schedule. 

He claimed that the general overtime provision in section 3(B)(1) of Wage Order 5 mandated that he be paid overtime for those hours not regularly scheduled by the alternative workweek schedule, including any work during hours 37-40 of the fourth workday in any given workweek. The hospital argued that 3(B)(8) is controlling, not 3(B)(1), and that weekly overtime is only required after 40 hours of work in a workweek.

Section 3(B)(1) is a general provision that allows employers to utilize a 4/10 alternative workweek schedule if certain conditions are met. It provides that work performed in any workday beyond the alternative workweek schedule established by agreement must be paid at overtime. 

The trial court found that Section 3(B)(8) is specific to health care employees on a 3/12 alternative workweek schedule. Section 3(B)(8) mandates overtime after 12 hours in a workday (at double time) and after 40 hours in a workweek (at time and a half). It does not require overtime for work on a day beyond the schedule if the work does not exceed the 40-hour standard.

The Court of Appeal cited three reasons in upholding the lower court’s decision that section 3(B)(8) regulates the overtime pay for health care workers on a 3/12 alternative workweek schedule. 

It first cited statutory construction. Section 3(B)(1) refers to both the work beyond the alternative workweek schedule and the work beyond 40 hours per week as a trigger for overtime. However, section 3(B)(8) refers only to time and a half pay when the employee works for more than 40 hours in the workweek. When statutory provisions use materially different language to address the same or related subjects, there is a normal inference that a different meaning is intended. Furthermore, specific statutory regulations control over general ones. Therefore, it is reasonable to conclude that section 3(B)(8) is controlling.

The second reason given by the court was that through Assembly Bill 60, the Legislature expressly directed the Industrial Welfare Commission ("IWC") to issue new Wage Orders to regulate alternative workweek schedules for the health care industry. The Legislature further directed that these new Wage Orders would be final and conclusive for all purposes. Pursuant to this directive, the IWC promulgated section 3(B)(8). This section clearly provides for overtime pay only when an employee exceeds 40 hours under a 3/12 alternative workweek schedule. Furthermore, the IWC specifically rejected the proposal to include premium pay for work beyond a 3/12 alternative workweek schedule.

Finally, the court ruling was based on the premise that the plain language of Wage Order 5 is not contradicted by any case law. The court ruled that the plain language of Wage Order 5 clearly indicates that overtime pay for health care employees working a 3/12 alternative workweek schedule is controlled by section 3(B)(8).