Does my employer have to pay a shift differential?

UPDATED: Jan 15, 2011

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Does my employer have to pay a shift differential?

We have only ever had first shift. Now the company is creating a second shift, and says they are not paying a shift differential? I thought that they have to. Could you please explain the law on this one? We are a non-union shop.

Asked on January 15, 2011 under Employment Labor Law, New York


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Shift differential pay is not required by law; it is a discretionary benefit.  In other words, it is something that an employer can voluntarily choose to pay - or not.  This holds true unless your employer has previously paid employees such a differential, or it is required to be paid by virtue of an employment/union contract, or it is being withheld due to discriminatory reasons.  Absent any of the foregoing (which are either not the case in your situation or at least you did not indicate to be the case), you have no claim to be paid a shift differential. 

Note:  As always, to the extent the you are a non-exempt employee, you are still entitle to be receive overtime pay for any hours that you work over 40. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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