Insights
Publications

California Court Finds Shift Call-Ins May Trigger Reporting Time Pay

February 13, 2019 Articles

A California court has held that employees required to call their employers before a shift to determine whether they are assigned to work may be entitled to reporting time pay on days when they are not actually put to work. Thus, employers utilizing similar scheduling models may be required to pay employees not assigned to work an amount equal to half the employee’s normal daily pay for those shifts.

In Ward v. Tilly’s, Inc., B280151 (Feb. 4, 2019), a California Court of Appeal allowed a lawsuit to proceed against retailer Tilly’s, which had scheduled employees for a combination of regular and “on-call” shifts. For Tilly’s “on-call” shifts, employees were required to contact their stores two hours before the shift start to determine whether they were needed to work those shifts. Tilly’s advised employees to assume they would be needed for their on-call shifts until told otherwise, and employees were disciplined for failing to contact their stores prior to the on-call shifts, for contacting the stores late, or for refusing to work when assigned in the call.

Skylar Ward, a Tilly’s sales clerk, filed a putative class action complaint against Tilly’s alleging that its employees were due reporting time pay on days they were required to call in for a shift but were not directed to appear for work. The court held that Tilly’s on-call scheduling system triggered wage order reporting time pay requirements, which provide pay for each workday “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.”

The court explained that “report[ing] for work within the meaning of the wage order is best understood as presenting oneself as ordered.” The court opined that, when on-call employees contacted Tilly’s two hours before on-call shifts, as Tilly’s ordered, they were “reporting for work.” The court rejected Tilly’s argument that “reporting for work” “requires an employee’s physical presence at the workplace at the start of a scheduled shift.”

The court found Tilly’s policies to be precisely the type of restriction that reporting time pay was designed to discourage. The court opined that such on-call shifts burden employees, who must make child and elder care arrangements for such shifts and cannot take other jobs, go to school, or make social plans—but who nonetheless receive no compensation unless they ultimately are called in to work. The court acknowledged, however, that the wage orders create difficult line-drawing challenges as the orders do not specify how much advance notice employees must be given to avoid a reporting time penalty.

In light of this decision, employers should review their scheduling policies. In some instances, the cost of reporting time pay may be necessary to ensure that an employee is available for the shift. Where an employer does not want to incur reporting time expenses, it should attempt to distinguish its shift policies from Tilly’s.

Specifically, employers should reconsider policies which penalize employees for refusing to work an “on-call” shift or for generally not being available on short notice. In addition, employers may consider revising any mandatory call ins by either (a) circulating or publishing upcoming available shifts and allowing employees to check in for the shifts they wish to work, or (b) assigning managers to contact employees who have indicated that they might be available for additional shifts, and offering those shifts on a voluntary basis.

Firm Highlights

Publication

California Supreme Court Clarifies Background Check Laws in California

Employers which use background checks in their hiring process without obtaining written authorization may wish to review their practices. The California Supreme Court has rejected an argument that employers could not reconcile the state’s two...

Read More
Publication

Employers Have Less Than Six Months Left to Complete New Mandatory Sexual Harassment Training

If you have not yet made arrangements to comply with the new California sexual harassment training requirements, now is the time to put those plans in place. Under a new law that took effect...

Read More
Publication

In the Weeds: Marijuana Legalization & Employment Laws

Over the last several years, attitudes towards marijuana use have rapidly changed in the United States. According to a 2018 Pew Research Survey, 62 percent of U.S. respondents said marijuana use should be legal...

Read More
Event

Complex Civil Litigation Symposium

Doug Dexter is a member of the planning committee for the 2019 Complex Civil Litigation Symposium.

Read More
Publication

New California Employment Laws Will Require Significant Changes in 2019

California Governor Jerry Brown recently signed into law several bills that will have significant impact on employers’ workplace obligations. Effective January 1, 2019, the new laws will restrict nondisclosure agreements and certain settlement agreements covering...

Read More
Publication

Are You Background Checking Your Contractors? If So, Exercise Caution.

Employers who use background checks in their hiring processes are likely aware of the various requirements under the Fair Credit Reporting Act (FCRA) and analogous state statutes. They must provide clear disclosures and obtain...

Read More
News

40 Farella Braun + Martel Attorneys Named to 2019 Northern California Super Lawyers and Rising Stars

SAN FRANCISCO, July 8, 2019: Forty Farella Braun + Martel attorneys across practice areas were named to the Super Lawyers and Rising Stars lists of top attorneys in Northern California for 2019. Farella attorneys...

Read More
News

Farella Braun + Martel Attorneys Recognized in The Best Lawyers in America© 2020

Read More
Publication

New California Crown Act Reminds Employers to Carefully Consider Workplace Dress and Grooming Policies

California Governor Gavin Newsom has signed into law the nation’s first bill banning discrimination based on an employee’s hairstyle. Senate Bill 188, otherwise known as the Crown Act, expanded the definition of race under...

Read More
News

Farella Adds Technology Industry Group Depth

Read More