Guidance on Hours Between Shifts According to Law

Commonly, Fair Labor Standards Act (FLSA) laws do not specifically govern the hours of rest between a shift ending one day and the next shift beginning. However, several states do have restrictions. For example, in Oregon, all employees must receive a minimum of ten hours of rest between the end of one shift and the start of the next, or a compensatory amount of time for that rest. The five states with some of the most stringent hours between shifts laws include: Oregon – Ten hours . California – No less than 11 hours, unless the employer pays an overtime rate for the hours falling between the end of the first shift and the beginning of the second. Washington – No less than 10 hours has to pass between the end of the first shift and the beginning of the second, unless paid overtime is provided in order to compensate. Alaska – Employees who work a shift longer than ten hours must receive eight hours of consecutive time off within the next 24-hour period. Texas – Employees, other than emergency personnel, can only work more than 12 hours if they receive eight hours off work for every additional hour they work.

A Brief Insight into the Fair Labor Standards Act (FLSA)

The FLSA is the set of federal employment laws that govern most private sector hour and wage regulation, including salary, overtime, age restrictions, and miles (for truckers). Under the FLSA, employers can be examined for compliance by employees, non-employee investigators (such as the Department of Labor), and ex-employees. The FLSA essentially allows for regulation of hours and wages under a "what’s not okay" method, meaning that employees or regulators can challenge any hours or pay that they deem inappropriate in any way. However, there are exceptions and standards below which employers cannot go.
In terms of shift work specifically, the FLSA does not examine a set number of hours between shifts for legality. In other words, an employer is free to implement any number of hours between shifts it feels is appropriate, with no input from the FLSA. However, if the employer’s decision leads to resulting overtime (under 29 U.S.C. ยง207(a)), then the FLSA will take issue with the policy and will rule against it.

State-Specific Agreements Regarding Hours Between Shifts

Many states have their own laws that dictate the minimum hours required between shifts. For some employers, these statutes can mean significantly more time off for their employees from day to day. So long as paid sick leave is not involved, these laws commonly are not as stringent as those in San Francisco. Instead, they cover the following scenarios:
In California, there are already restrictions for certain employers in terms of mandatory rest breaks for employees over a certain number of hours worked per day and for employees who work a certain number of hours consecutively. But not all employers (or employees) know that the state also has some limitations on the period between shifts. The law maintains that employees must be provided with at least one day’s rest after a period of work that does not exceed six days. This means that you cannot have your employee work 12 days in a row and then take one day off. It means that you are required to provide them with two days off for every 13 days they work. Under the law, "day’s rest" is defined as "any calendar day except Sunday on which an employee is entitled to rest, and shall not include any payments for overtime or for work performed on a day of rest."
Some employers may have exception to this rule under certain conditions. To that end, the employee must agree to work more than six days in order to take a day off. Also, if the total number of hours worked by the employee during the workweek exceeds 11 per day and 40 per week, then they are entitled to have one day of rest for each seven days worked.
The District of Columbia has several laws that are of note when it comes to shift length laws. There are at least three that may apply depending on your industry. The first statute, the "Temporary Worker Agency Registration Amendment Act of 2010," specifically addresses those agencies. The law stipulates that an individual employed by a temporary worker agency may not be expected to work for the same client for more than 90 workdays within a 120-day period unless the client compensates the employee with a $1.50 per hour raise for every hour the employee is required to work beyond the standard number of workdays. In hours this translates roughly to a person working 90 days and must conclude by the 120th day.
The second law of note specifically applies to employers in the hospitality and retail industries that require the swapping of shift work among employees. Under the "Retail and Hospitality Industry Fair Work Week Amendment Act of 2015," a business is required to habe a "clopen" policy, which requires that employees get at least 10 hours between shifts that are being swapped, as well as permitting employees to decline shift work if they receive less than 10 hours’ notice when a shift has been swapped. Employers with fewer than 10 employees are exempt from the latter requirement.
The third law of note in the District of Columbia is particularly interesting because it is specific only to the banking industry, but it is strict enough that the District of Columbia is the only jurisdiction east of the Mississippi River that maintains bank regulations similar to the ones in California. Under the "District of Columbia Financial Institutions Act," banks may not employ junior officers or tellers for more than seven business days in a calendar month without a break of at least 36 hours, some of which must be continuous.

Industry-Specific Exceptions to the Rule

While a 10- to 12-hour interval is typically the standard that states use when determining how many hours an employee must have between shifts, there are select exceptions to that general rule. One of the industries where the 10-hour minimum does not apply is the health care sector, specifically in regard to licensed nurses and nurse aides. The shift interval law in Vermont allows brief shifts of eight hours if the shift is necessary to meet patient needs or if it would be impractical for the employer to reschedule the shift.
In Alaska, both labor transport and bout staff, or crew members, for large commercial fishing vessels are exempt from the 10-hour shift interval requirement. In Washington, the rule does not apply to the operators or crew of vessels that are licensed by the U.S. Coast Guard.

Impact of Shift Length on Health and Well-being

The research on how shift length can impact the health of workers is robust – and should be treated as a fact of life by employers. Over time, insufficient time between shifts can have both an immediate and a long-term effect on the health of workers.
The American Psychological Association (APA) has published several studies on just this topic. To give you a sense of what they had to say, here are a few recent highlights:

  • Excessive Shifts, More Pain – A 2015 study of healthcare workers in Korea found that those who consistently worked more than 12 hours a day had elevated reports of pain. Many noted pain in the back and legs – both because of their shifts and the amount of time they were on their feet . The study, which looked at a small sample of only 150 nurses, published a call for additional research on the matter.
  • Work Intervals Can Make a Difference – A study from the University of Michigan surveyed 1,366 manufacturing employees to assess their work stress across a broad range of factors. It ultimately found that those working fewer than 48 hours a week also took fewer risks on the job while reducing levels of depression and stress.
  • Burnout Is Again Piling Up – In a 2016-17 survey of members of its staff, the APA found that almost 60 percent of its participants were experiencing high levels of work related exhaustion. In addition to fatigue, work responsibilities were also causing participants to suffer from a lack of enthusiasm for their job.

Employers and Strategies for Allowable Shift Lengths

To stay within the legal boundaries of shift length laws, employers should incorporate the following strategies:
Plan Ahead: Maintaining a planned schedule is the best way to avoid awkward situations. Consider developing a scheduling system that takes into account employee preferences and needs.
Avoid "Clopening": Many employers do not have the clopen provision such as those found in some California cities in their contracts. A conscious practice of avoiding this practice will benefit the company’s relationship with its employees.
Consider the 24-Hour Rule: California law allows for a part-time (less than 40 hours weekly) to work up to 12 consecutive hours in a workday. Some employers have a policy where employees with less than 40 hours may not work more than 8 consecutive hours, but if needed, a part-time employee can still work more than 8 hours at a time provided that they receive 11 hours off. The benefit of this practice is that the employer does not get busy making a scheduling request change only to have the employee state they have already made plans.
Evaluate Constraints of Part-Time Workers: Some employers are in business to serve clientele at periods that do not conform to typical scheduling. For example, some health facilities, janitorial companies, and restaurants have a majority of their business at night and/or on the weekends. Employers should regularly evaluate employee scheduling to determine whether it is providing greater benefit or hardship.

Rights of Employees when Legal Violations Arise

If an employee believes that there has been a violation of a shift interval law, the law affords them the right to file a complaint with the appropriate government agency. The law provides a remedy for employees in California. They can contact the California Division of Occupational Safety and Health (Cal/OSHA) which oversees workplace safety. If the employee is in New York State , then the Department of Labor handles workplace safety complaints. As well, the employee can consult with a labor law attorney about possible legal action against their employer for either violating a shift interval law or subjecting the employee to unsafe working conditions.