PHONING IT IN
California Employers Must Pay Wages for Required Call-In to Confirm Day’s Work Schedule
Employers who require workersto call in to ascertain whether they are needed for a scheduled work shift will now need to rethink this practice.
California Industrial Welfare Commission (IWC)publishes “wage orders” containing regulations on wages, breaks, record-keeping and other working conditions, including so-called “reporting time pay.”
Employees must receive “reporting time pay”whenever they report to work as scheduled or at the employer’s request but are either not put to work or are given less than half of their scheduled or usual hours. In these instances, the employer must pay half the usual or scheduled day's work, but in no event for less than two hours nor more than four hours, at the employee’s regular rate of pay. For more information on calculating reporting time pay, please see California’s Division of Labor Standards Enforcement’s frequently asked questions.
It is undisputed that employees must receivereporting time pay whenever required to physically report to work only to be sent home. It has been less clear whether employees must also receive reporting time pay for calling in to find out if they have to work scheduled shifts and then being instructed not to come in to work that shift.
A recent California Court of Appeal decisionheld that such remote phone calls can trigger the reporting time requirement.
In Ward v. Tilly’s, Inc.,plaintiff worked as a sales clerk. Tilly’s allegedly required all such clerks to contact their stores two hours before the start of any tentatively-scheduled shift to determine whether they were needed to work (referred to as “on-call” or “call-in” shifts). Tilly’s disciplined employees for failing to call in or for refusing to work these shifts when instructed to do so. The employees did not receive any compensation if after calling in they were instructed not to work the shift in question.
In her class action complaint,plaintiff Ward argued she and fellow employees should have received reporting time pay whenever they called in and were told not to come to work.
The appellate court agreed with the plaintiff,emphasizing that “‘report[ing] for work’ within the meaning of the wage order is best understood as presenting oneself as ordered” and concluding that the reporting time requirement is triggered whenever an employer directs employees to present themselves for work by:
(i) physically appearing onsite at the shift’s start;
(ii) remotely logging on to a computer;
(iii) appearing directly at a client’s work site;
(iv) starting a trucking route; or
(v) telephoning the employer a couple of hours prior to the shift’s start.
Although the plaintiff brought this case under Wage Order 7 (mercantile industry),the other wage orders have identical reporting time requirements. All California employers should thus consider the following best practices:
• Eliminate any such mandatory call-in practices/tentative work shifts if at all possible
• Have management call a list of employees to ask if they are willing and able to work certain shifts
• Do not discipline employees who choose not to return such calls or who refuse to come in
• Review and update all reporting time and unpaid on-call policies and practices to ensure compliance with the Ward v. Tilly’s decision
• Keep apprised of any new court decisions that further address these issues
• Consult with competent and experienced legal counsel as needed to address such issues
For additional assistance,please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy BamforthMarch 13, 2019