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Is it legal for a facility to pay RNs working a 12-hour shift a rate of pay based on the shift comprising the bulk of their working hours?

Friday May 9, 2014
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Dear Nancy,

I recently started a new job where the nurses work 12-hour shifts. We are paid for the shift that is the bulk of our working hours. For example, day shift RNs get paid for day shift only, even though they work four hours on the night shift. The next shift has hours on night shift but gets paid NOC differential for all 12 hours. Is this legal practice?


Dear Nancy replies:

Dear Andrea,

The description of the payment arrangement your facility has for day and evening 12 hour shifts is unusual. However, you did not mention if the facility was unionized and if so, if the union somehow negotiated a different pay differential for the evening shift as opposed to the day shift. Or, it may be the evening shift staff negotiated this differential with the employer.

It also could be the facility is offering this difference for the evening shift due to the difficulty it has in filling slots for evening staff. As is often the case, working days is seen as more desirable than working evening/nights.

For your information, a shift differential is calculated at the base pay before overtime is calculated. So, if either shift is working overtime, that would be calculated as required by the Fair Labor Standards Act.

You can check into this further by talking to someone in payroll to get information as to why this difference exists. In addition, you can bring this issue up with the DON and human resources department to see if day staff can be paid the differential for the four hours they work on the evening shift. It certainly would be a fairer arrangement for those on the day shift.


Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.