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The California Court of Appeals recently expanded the application of reporting time pay to employees who merely call in to learn if they are required to work and who do not actually physically report to work.
The case is Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167. Anyone who has been to a mall in the last 35 years will recognize Tilly’s as a retail apparel and footwear company. Tilly’s developed an on-call scheduling practice for Tilly’s retail sales and cashier employees where employees were assigned on-call shifts but were not told until they called in two hours before their shifts start whether they should come in to work. Historically, these employees did not receive any compensation for having been “on-call”, meaning, if an employee was assigned an on-call shift, called in, and was told the employee should not come in to work, Tilly’s would not compensate that employee for that day.
The plaintiff, a Tilly’s employee, filed a class action lawsuit against Tilly’s alleging that Tilly’s was required to pay employees reporting time pay for being on-call. The Wage Orders mandate that employers pay an employee reporting time pay for each day an employer requires an employee to “report for work” but is not put to work or is furnished less than half of the employee’s usual or scheduled day’s work.
Tilly’s argued that “report for work” means physically being present at the assigned work location and that employees who merely called in to learn about a shift were not reporting for work. Naturally, being that this is California, the Court of Appeals was presented with an opportunity to get more money to employees and held that an employee can “report to work” by “any manner of reporting, whether in person, telephonic, or otherwise.” Therefore, each day an employee is on-call and required to call in to learn whether the employee should come to work, the employee must be paid reporting time pay.
Reporting time pay is half the employee’s usual or scheduled day’s work, but in no event less than two hours of pay and no more than 4 hours of pay. Reporting time pay is calculated and paid at the employee’s REGULAR RATE of pay, not straight time or base pay.
This Court’s opinion is thankfully not retroactive. Nevertheless, California employers must now start paying reporting time pay to on-call employees who merely call in for work or develop a scheduling practice that avoids this type of situation.
We recommend that all employers contact us to review their scheduling practices and discuss the whether on-call employees should be paid reporting time pay. Please contact Kurtis Urien at Kurtis@mrjclaw.com for assistance with reporting time pay.