Last month, a California Court of Appeal ruled that requiring an employee to call into work prior to the start of an on-call shift triggers the employer’s responsibility to pay reporting time pay in the event the employee is not furnished at least half his usual or scheduled day’s work.
What Is Reporting Time Pay?
Under California law, when an employee is required to “report to work” for a scheduled shift, but is not actually put to work, or is not provided with at least half of a usual day’s work, the employer must pay the employee for half the usual scheduled day’s work at the employee’s regular rate of pay. However, under those circumstances, in no event may the reporting employee be paid for less than two hours or more than four hours of work. (In addition, if an employee reports to work a second time in any one workday and is provided with less than two hours of work on the second reporting, the employee must be paid for two hours at her regular rate of pay.) To learn more about Reporting Time Pay in general, click here.
In Ward v. Tilly’s, Inc., employees assigned to work “on-call” shifts were required to call their stores two hours before the start of their scheduled shift to learn whether they would need to come in for work. The plaintiff alleged that employees were instructed to “consider an on-call shift a definite thing until they are actually told they do not need to come in.” However, Tilly’s did not pay employees anything for on-call shifts unless they were actually required to work the shift. Tilly’s did not consider calling into work as required two hours prior to their shift as “reporting to work” for purposes of the reporting time pay requirement.
The appellate court ruled that reporting time pay is triggered whenever the employer directs the employee to “present” himself for work. The Court stated: “[I]f 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.” Accordingly, when Tilly’s directed employees to present themselves for work by telephoning two hours ahead of their scheduled on-call shift, the reporting time requirement was triggered by the contact.
The Court stated: “[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 Tilly’s unless they ultimately are called in to work. This is precisely the kind of abuse that reporting time pay was designed to discourage.”
Part of an Identifiable Trend
Although this decision will come as a surprise to many employers who have been paying reporting time pay only when their employees physically report for a shift, it follows an ongoing movement in California. Sutton Hague previously reported on a November 2017 trial court decision which reached the same conclusion as Ward v. Tilly’s. (Read the blog post by clicking here.)
In addition, some California cities, such as San Francisco, have passed local ordinances requiring some employers to provide employees with work schedules in advance, and pay compensation to employees if their work schedule is changed without sufficient notice.
Although not passed, a 2015 bill known as the Fair Scheduling Act would have required employers to provide two weeks’ notice of work schedules. The Act also would have required employers to pay employees if scheduling changes were made with less than seven days’ notice.
What Does This Mean for California Employers?
Accordingly, employers should revise their reporting policies immediately to avoid liability for unpaid wages and penalties. Where possible, employers should eliminate on-call shifts. At a minimum, however, employers must revise their policies to reflect that any contact an employee is required to make with the employer may need to be compensated, and may also trigger the requirement for reporting time pay.
The Ward v. Tilly’s case, along with other significant employment law recent developments, will be discussed at SHLC’s Mid-Year Employment Law Update for California Employers on June 4, 2019. To sign up, call any of our offices, email us at firstname.lastname@example.org, or visit our Events page here.