Supplemental guidance on 4/10 schedules: discipline-related absences and extra shifts

STEVE SISOLAK STATE OF NEVADA
Governor OFFICE OF THE LABOR COMMISSIONER
1818 COLLEGE PARKWAY, SUITE 102
TERRY REYNOLDS CARSON CITY, NEVADA 89706
Director PHONE (775) 684-1890
FAX (775) 687-6409
SHANNON M. CHAMBERS
Labor Commissioner
OFFICE OF THE LABOR COMMISSIONER
3300 W. SAHARA AVE. SUITE 225
LAS VEGAS, NEVADA 89102
PHONE (702) 486-2650
FAX (702 486-2660
Department of Business & Industry
OFFICE OF THE LABOR COMMISSIONER
http://www.labor.nv.gov

                   SUPPLEMENTAL GUIDANCE ON 4-10 SCHEDULES
                    ADVISORY OPINON 2013-04 – JANUARY 25, 2021

      POTENTIAL DISCIPLINE OF AN EMPLOYEE:

      If an employer is conducting and/or pursing potential discipline of an employee and the
      employer decides to place the employee on suspension, leave without pay, administrative
      leave, or any other type of leave and/or absence from the employer's location/business
      where the employee works while the employer conducts an investigation and/or any other
      inquiry into the actions of the employee, the Labor Commissioner would not consider that
      to be a deviation from the 4-10 schedule that the employee may have been working. This
      would also apply to deviation from the 4-10 schedule for actual discipline that results in
      time away from work for a suspension, leave without pay, administrative leave, etc.

      To the extent that the employer concludes the investigation, and the employee is brought
      back within the same week, the Labor Commissioner would still not view that as a
      deviation from the 4-10 schedule thereby triggering potential overtime pay for over 8-hours
      of work in a 24-hour period.

      However, if a situation and/or circumstance was brought to the attention of the Labor
      Commissioner where the employer may have utilized potential discipline to circumvent
      paying daily overtime for work over 8-hours in a 24-hour period depending upon the hourly
      wage rate of the employee, the Labor Commissioner may investigate and could determine
      that daily overtime applies. The Labor Commissioner can decline jurisdiction if it appears
      that there is relief available under a collective bargaining agreement pursuant to Nevada
      Administrative Code (NAC) section 607.100.

      ADDITIONAL HOURS/SHIFTS/WORK AFTER 4-10 SCHEDULE COMPLETED:

      If an employee has completed a 4-10 schedule and worked 40-hours in a work week and
      the employer offers and/or the employee wants to and agrees to work additional
      hours/shifts after the 40-hours of work, the Labor Commissioner finds that this allowed
      and should not be prohibited. The employer would still be responsible for overtime for
      over 40-hours of work in a work week but allowing an employee to work additional hours
      after a 4-10 schedule should be allowed and can be agreed to by the employer and the
      employee.

      The events related to the COVID-19 public health emergency have caused both
      employers and employees to adjust work schedules, hours, shifts, etc. Employers and
      employees should have the flexibility to provide additional hours/shifts/work for employees
      after a 4-10 schedule is completed so long as the employer complies with any applicable
      overtime requirements.