A California Court of Appeal has ruled that employees who are required to contact their employer before an on-call shift, but never physically report to work, may be entitled to reporting time pay.
In Ward v. Tilly’s Inc., plaintiff Skyler Ward challenged the on-call scheduling practices of her employer, Tilly’s, as violating reporting time pay provisions. The company’s policy required employees to work “on-call” shifts for which the employee would be responsible for calling-in two hours before the start of the shift. Employees were disciplined if they failed to contact their store accordingly, however, employees were only compensated if they were required to actually come into the store and work.
The appellate court reversed the lower court’s ruling and agreed with Ward that Tilly’s violated California’s reporting time. In its ruling, the appellate court defined a new interpretation of “reporting time” as follows: “If an employer directs employees to present themselves for work by physically appearing at the workplace at the shift’s start, then the reporting time requirement is triggered by the employee’s appearance at the job site. But if the employer directs employees to present themselves for work by logging on to a computer remotely, or by appearing at a client’s job site, or by setting out on a trucking route, then the employee ‘reports for work’ by doing those things. And if . . . the employer directs employees to present themselves for work by telephoning the store two hours prior to the start of a shift, then the reporting time requirement is triggered by the telephonic contact.”
The court’s decision means that California employers who require employees to call in before a shift to determine whether or not they are needed, and report to work if called in, are now obligated to pay that employee. Each workday an employee is required to report for work (in this case, call-in) and does report, but is not put to work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.
The court failed to address the issue of whether its holding would apply retroactively, however, the dissenting opinion cautions against retroactivity.
Guidance for Employers
The court identified several distinguishing features of the Tilly’s scheduling policy, including: (a) requiring the employees to call the employer; (b) independently disciplining employees for late or missed call-ins; and (c) making call-in and reporting mandatory.
CCM encourages you to consult with an attorney to determine if your scheduling and compensation practices are in-line with the court’s ruling. Nominally, employers should consider the following guidelines:
- Contact the employee; do not require the employee to call in. You can do this by creating a call list of employees who might be available prior to the upcoming shift. Your managers can then make their way through the list to meet scheduling needs. This practice has been approved by various courts in related “on-call” contexts.
- Do not discipline employees for failing to respond to your call to check for availability. Without a fear of discipline, it would be much more difficult for the employee to argue that the policy truly constrained the employee’s freedom and activity.
- Don’t make reporting mandatory. If an employee answers and doesn’t wish to report to work, simply move on to the next person on the list. This practice has also been approved by various courts in related “on-call” contexts.
