Can You Work 12 Hour Shifts Legally? Understanding The Legalities Of Work Hours

Summary Of Work Hour Laws And Regulations

The framework of labor laws and regulations in the United States is designed to set forth the general rights and obligations of both employers and employees with respect to hours worked and, mostly, compensation for time worked. At the federal level, these rights and obligations have been codified in the Fair Labor Standards Act ("FLSA"), which both states the minimum standards for wage and hour requirements and, in effect, provides a floor for those requirements. Even if an employee works more than 40 hours per week (or more than 8 hours per day), and is paid more than minimum wage, the FLSA may not require additional compensation for that time.
There are, however, many exceptions to the types of workers as well as types of work that are exempt from the FLSA’s general principles. For example, non-production workers such as, but not limited to, lawyers, executives, and administrative or secretarial employees, are often exempt if they satisfy certain criteria . Other exemptions may apply under state law.
The FLSA and its state law equivalents also set forth principles that control whether overtime must be paid. Again, there are times when overtime is not required, generally if the actual hours worked do not go beyond a threshold of 40 hours per week (or 8 hours per day).
Legislators, the courts particularly the Supreme Court, and administrative agencies such as, for example, the Occupational Safety and Health Administration ("OSHA"), have all weighed in on the rights and obligations of employers and employees. These authorities have made it clear that, under certain prescribed circumstances, employees can work in some form of daily or weekly schedule that would keep them exempt from additional compensation or even an obligation to take a lunch hour and breaks despite other obligations or statutes, rules, or regulations that workers should receive additional pay for that time or time spent off.

The Lawfulness of 12-Hour Shifts

Employers can legally require 12-hour shifts from exempt employees, such as those in executive or administrative positions. Conversely, for nonexempt employees, requiring 12 hours of work every day may not be permissible under the federal Fair Labor Standards Act (FLSA).
The FLSA does not limit the number of hours per day or per week an employer can require nonexempt employees to work. However, the FLSA does have stringent requirements concerning overtime compensation. In the private sector, employers must pay nonexempt employees time and one half their regular rate of pay for all hours worked in excess of 40 hours per workweek. The calculation of that overtime depends on the frequency with which the employer’s workweek begins. If an employer does not utilize a workweek schedule, its regular pay day constitutes the beginning of its workweek.
Some states impose limitations on the length of shifts and/or the number of hours employees can work in a given day. Employers are not required to pay overtime in addition to the required hours or shift limitations. Under this scenario, if an employee works more than the scheduled hours or shifts in one day, the employer must pay the overtime required by state law. Employers are not prohibited from allowing employees to work overtime to earn a higher wage, but employees are not required under the federal FLSA to do so.
Certain industries have laws limiting the hours their employees can work in a given day or week. Most notoriously, the trucking, airline, and hazardous-material transportation industries have such limitations.
Given this confusing landscape, employers are advised to consult with their experienced employment counsel concerning the legality of any proposed new work schedule policies.

Complications Related To Overtime And Pay

The FLSA requires that covered, non-exempt employees receive overtime pay if they work more than 40 hours in a workweek. "Overtime" means time-and-a-half the regular rate of pay. Although the FLSA does not require overtime pay for work over eight hours in a day, the application of the daily standard can be important in some cases. For example, if an employee works four 12-hour days in a workweek all shifts worked in excess of 8 hours are entitled to overtime with the possible exception of those spouses on a public safety department who work 24 hour shifts. The applicability of the daily overtime standard is also important for those who work significant overtime settings.
Application of the FLSA’s overtime rules can be somewhat difficult when the employer does not pay its employees hourly but pays a flat rate. In some cases, an employee is paid a regular salary for the pay period even if he or she does not work a full schedule. If an employee is paid a salary, overtime pay must still be calculated at the regular rate of pay. Regular rate is determined by taking the total compensation for non-overtime hours worked and dividing by the total hours worked to arrive at the regular rate of pay.
Sometimes the regular rate of pay becomes complicated because an employer is not required to include all forms of compensation in an employee’s regular rate of pay. For example, extra wait, shift differential pay, meal allowances and a host of other forms of extra compensation can not be considered in determining the employees "regular rate." Christmas bonuses, gifts and a host of other payments paid by the employer may also not be included in the regular rate if they qualify for an exemption. The failure to include all forms of compensation in the regular rate of pay will reduce the overtime compensation the employee is entitled to receive.
Employers of state and local public safety officers (including police, correctional officers, firefighters, etc.) can avoid paying overtime to their employees under the "fluctuating workweek" method provided the employee is paid a fixed amount based on the number of hours worked in a work period which is in addition to statutorily required premium pay. Of course, the fluctuating workweek method cannot be used if an employer customarily pays overtime to its employees who are not subject to the fluctuating method. Under the "fluctuating workweek" method an employee receives his or her fixed salary divided by the number of hours worked in the pay period, irrespective of the number of hours worked.

Safety and Health Zones

When employees work long, 12-hour shifts, and even longer periods of time, fatigue becomes a significant factor. While studies have shown that employees can be productive up to 12 hours a day, the relationship between fatigue and productivity is not linear, with cumulative effects occurring even in shift spans of 12 to 16 hours. These findings are particularly true in the manufacturing industry where there is a greater focus on productivity, efficiency, and safety. An employer can assess whether or not its employees are fatigued by asking questions like: Does the work the employees do require concentrated mental effort? Does the work involve danger of injury? Are there high production expectations or time pressure?
As an employer, it is important to know that if an employee is injured as a result of workplace fatigue, the employer may be responsible. For example, in Mayfield v. Floyd, XXX0446 (7th Cir., April 27, 2010), an employee died as a result of a car crash during his commute home from work. During the month before the crash, the employee had worked 19 consecutive days, 12 hours a day, a schedule set by his employer. Although his commute time was not compensable, the Court found that the employee’s fatigue from the long work hours created a risk of injury to himself and to others that was within the scope of the employer’s employment.
In addition, since an employee who works a certain number of hours straight becomes "fatigued," if the employees who work those shifts are working under a collective bargaining agreement, there may be contractual time limits for working shifts in excess of 12 hours. If those time limits are exceeded, the employer may be liable for injuries that occur as a result of an employee exceeding the contractually agreed upon time limits. That being said, it would still be extremely difficult for an employee to prove that he or she was fatigued and therefore could not perform his or her job duties.

Employee Rights And Employer Duties

Employees who are required to work 12-hour shifts have specific rights that their employer must accommodate, within reason. These include provisions around rest breaks and meal periods, both in terms of hours and compensation. The law requires employers to provide reasonable rest breaks during a shift, to ensure the safety and comfort of their staff. An employer must authorize a rest period of 10 minutes for every four hours of work. This is counted as paid time on the clock and can be broken up into segments if necessary. If employers find that genuine functional difficulties have led to a rest period falling through the cracks for one reason or another, they may not be penalized for lacking compliance. Employees should also expect that their employer will be reasonably flexible in providing them a meal period halfway through their shift, with at least one hour provided before the start of the second half of the shift. For the most part , employers cannot require their staff to clock out and take a rest break or meal period. This can be used as a punitive measure, which is strictly prohibited. Employees should be allowed to choose whether to clock out and receive that pay, or forego the break and receive their full pay for those hours. An employer may not enforce a consent waiver on the employee for taking or not taking breaks and meal periods. Each individual employee must give consent, however indirect that may be. Employers must provide employees notice of their right to each of these provisions, if it will be conceivably violated (such as if an employee has scheduled a shift that will likely require rest breaks). Failure to provide this notice may lead to legal action. Employers should prepare a written document detailing their rest periods and meal periods, and provide copies to its employees.

International Guidelines

From a comparative perspective, twelve-hour shifts are common in other countries. The European Union’s Working Time Directive requires that employers generally provide a minimum daily rest period of 11 consecutive hours, but notes an exception for "shift workers" for which a union or workplace agreement, specifically member states’ legislation, determines the rest period. In many EU countries, daily limits for certain industries are as long as 12 hours. In Japan, all employees can work up to 40 hours per week. Under circumstances of "labor intensive operation" of a business, employees may be required to work up to 80 hours per week, with the employee’s consent. In Canada, the general rule under the Canada Labour Code for hours of work is 8 hours a day, or 40 hours a week. A combination of 8 hours and 10 hours per day is allowed under regulations. Whereas in some jurisdictions in the United States, because of federal or state laws, employees may be paid overtime when working 40 hours per week, in part so as to promote the health and welfare of employees, in Ontario, the minimum daily rest period is 8 consecutive hours without pay, but that suffices for a 24 hour period. Wages notwithstanding, employers across the world are largely permitted to implement a variety of work hour regimes designed to suit the operational needs of their business, provided they comply with applicable statutory minimums.

Summation & Standards

To conclude, while 12-hour shifts are technically legal under federal law, limited restrictions do exist for employers working with employees who are 14- and 15-years old. In the absence of an exception, employers are required to comply with applicable work hour laws; in almost every case employers should be adopting best practices to limit hours to 12 or less. Under the expansive FLSA, employers should in most instances implement best practices by limiting hourly shifts to 12 and under . More specifically, within the context of the parameters of the FLSA and its exceptions, employers should keep the following in mind: To ensure compliance there are a number of best practices that should be implemented: These best practices can be utilized by employers in a variety of different contexts. Employers should be careful to make sure they are considering all potentially applicable exemptions when developing their policy.