In a recent decision involving retail store employees, the Second Appellate District Court held that employees subject to on-call scheduling must be paid reporting time pay, even when the employee only has to make a short call to determine if they are needed, but does not physically report to work.
The case, Skylar Ward v. Tilly’s Inc., Case Number B280151, involved a putative class action complaint filed by Plaintiff Skylar Ward (Plaintiff), a former sales clerk in a Tilly’s store. In the complaint, Plaintiff alleged that Wage Order 7 mandated that nonexempt retail employees be paid “reporting time pay” if either “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work” or “an employee is required to report to work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting.” (Cal. Code Regs., tit. 8, § 11070, subd. (5).) Specifically, Plaintiff contended that Tilly’s scheduling policy required employees to call in while on-call, disciplined employees for late or missed call-ins, and made call-in and reporting mandatory. Thus, Plaintiff alleged that when on-call employees contact Tilly’s two hours before on-call shifts they are reporting for work within the meaning of the wage order, and thus are owed reporting time pay.
The trial court sustained the demurrer by defendant Tilly’s on the grounds that Plaintiff is not entitled to reporting time pay under the Wage Order because: (1) the phrase “report to work” means that an employee physically appears at the workplace, and; (2) that merely calling in to learn whether an employee will work a call-in shift does not trigger reporting time pay under Wage Order 7.
On February 4, 2019, the Court of Appeal overruled the demurrer and concluded that the on-call scheduling triggered Wage Order 7’s reporting time pay requirements. Here, Tilly’s required its employees to contact their stores two hours before the start of their on-call shifts to determine whether they were needed to work those shifts. Notwithstanding, Tilly’s did not include on-call shifts as part of the employee’s scheduled day’s work when calculating pay unless the employee was required to work the on-call shift.
The court analyzed Wage Order 7’s plain language and regulatory history, as well as analogized the California Supreme Court’s decision in Augustus v. ABM Security [2 Cal.5th 257 (2016).], and determined the employer’s on-call shift policy imposed an imposition on the employee’s time for which it owed the employee compensation. Namely, unpaid on-call shifts burden employees’ ability to earn income, pursue an education, care for dependent family members, make social plans, etc. Therefore, the Court concluded that reporting time pay is triggered even when an employee need not necessarily physically appear at the workplace to “report to work” because the employee is still “presenting oneself as ordered.”
What this means for employers
In light of Ward, California employers that require employees to place a short call before a shift to determine whether or not they are needed, may be obligated to pay that employee a minimum of two hours of work, even if the employee does not actually report to work that day. Employers should review their on-call scheduling and payment practices to avoid the consequences of Tilly’s scheduling policy.