Not paid differential for overnight shifts

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Not paid differential for overnight shifts

I discovered after working several weeks of overnight shifts which was not
typical for my position that I am entitled to a differential in pay. After
discussing it with my employer they stated ‘I would see the difference in my next
paycheck’. I do not see any extra pay. How should I handle this.

Note I worked appx. 250 hrs without this differential so I know I would see a
difference if it was paid to me.

Asked on February 24, 2017 under Employment Labor Law, New Mexico

Answers:

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

Answered 4 years ago | Contributor

Do you have a collective bargaining/union agreement or employment contract that provides for shift differential pay? Does not getting such pay constitute some form of discrimination (i.e. you are not be given it due to your race, religion, national origin, age (over 40), disability, etc.)? If not, then your not being paid this differential is perfectly permissable since it is not legally mandated. The fact is that most employment is "at will" which means that a company can set the conditions of work much as it sees fit. For your part, if this in unacceptable, you can either continue to complain but risk termination or quit.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

There is no law requiring a shift differential--it is voluntary on the part of employers whether to pay it, to whom, and how much. Unless you had a written employment contract guarantying you this differential, your employer could choose to not pay it to you. (If you had a contract, you could enforce it in court, with a lawsuit, if necessary.)


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