A California retail clothing chain has a policy of assigning employees to “on-call” shifts. Under that policy, an employee must call in two hours before the shift starts. If the employee is told to come in when he or she calls, the employee is paid for the shift. If the employee is told he or she is not needed, then the employee does not receive any compensation for having been on-call.
A plaintiff challenged this policy, alleging that employees are entitled to reporting time pay for having to be on-call, even if the employee is not asked to work a shift. The trial court dismissed that claim, reasoning that “reporting to work” means physically doing so, not merely phoning the employer. But the Court of Appeal reversed, holding that having an employee on-call–even if the employee does not work a shift that day–triggers minimum compensation due under the applicable Wage Order. This holding has significant implications for employers who use “on-call” shifts and the employees subject to those shifts.
[O]n-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts—but who nonetheless receive no compensation from [their employer] unless they ultimately are called in to work. This is precisely the kind of abuse that reporting time pay was designed to discourage.
Ward v. Tilly’s, Inc., No. B280151 (Cal. Court of Appeal Feb. 4, 2019).
While the specific impact to employers will depend on the Wage Order applicable to their industry, employees and employers should be mindful that under this holding an on-call employee who does not work a shift may be entitled to from two to four hours of pay at the employee’s regular rate. See IWC order No. 7-2001. In addition, employee’s claims for unpaid wages may also trigger additional waiting time and other penalties under California law.
If you are an employee or employer who has questions about California reporting time pay, or other employment questions, contact Kristopher Diulio at kdiulio@forddiulio.com or call the experienced attorneys at Ford & Diulio PC at 714-384-5540.