A Recent California Supreme Court Decision Expanded The Reporting Time Pay Requirements
On February 4, 2019, the court in Ward v. Tilly’s, Inc. ruled that reporting time pay is owed for certain “on-call” shifts, where the employee must call in to find out if he or she needs to show up to work, but ultimately does not have to report. The court found that the act of calling in triggers the reporting time pay requirements in these circumstances, even though the employee is not actually required to physically come in to work.
Generally, California employers must pay “reporting time” pay when “an employee is required to report for work and does report, but is not put to work or is furnished less than half of the employee’s usual or scheduled day’s work.” See, e.g., Wage Order 14-2001, Section 5. The amount of pay owed is half the usual or scheduled day’s work, but in no event less than two hours or more than four hours of pay. If an employee must report for work a second time in a workday and works for less than two hours on the second reporting, then the employee must be paid for two hours.
In Tilly’s, retail employees were often scheduled for an “on-call” shift followed immediately by a regular shift. The employee would call in two hours early, or the night before for early morning on-call shifts, to find out if they needed to work the on-call portion. In other circumstances, they were scheduled for an “on-call” shift on days that they were not scheduled for a regular shift. In each of these scenarios, employees were paid only for their actual time worked, with no compensation for “on-call” shifts (or “on-call” portions of shifts) when they were told they did not need to work.
Tilly’s argued that reporting time pay only arises when an employee has to “report for work,” which it defined as physically coming to the worksite, and that simply calling in to find out whether the employee was required to work was not compensable. The court disagreed. It found that the practice in modern times of using phones to clock in/out and performing work remotely, as well as the restrictions on an employee’s time and preparations required for the potential work shift, such as obtaining child care, warranted a finding that telephonic call in requirements trigger reporting time pay if the employee is not put to work.
The court’s position regarding the requirement of paying reporting time pay would also likely be interpreted to extend to an optional call in (as opposed to required call in) because it is still a method reporting to work. The same restrictions are placed on the employee – cannot make other plans for the day, must secure childcare availability, cannot take another job, etc. The court opined that it is not merely the physical reporting to work such as time and travel that is being compensated, but also the restrictions on the employee who must plan ahead for the shift even if they are not ultimately put to work.
What This Means for Employers:
Although this case comes from a retail environment, many agricultural employers utilize a call in procedure of some sort to inform employees of the location of the worksite, weather delays or other work requirements. The Tilly’s case makes clear that if an employee is required to call in prior to a shift to find out if they are required to work, and is not scheduled to work, the employee must be paid reporting time pay. However, if the employee is required to work, even if that work is delayed due to weather or employer labor needs, then the employee need not be paid because the employee will be paid for the hours worked during that shift. If the employee is required to call in to find out the time or location of the shift, and is required to work, then reporting time pay is not required. As the only published California appellate decision addressing this specific issue, California employers are bound by Tilly’s and may need to revise their reporting policies accordingly to avoid liability. At the time of publication, Tilly’s has not yet decided whether to appeal to the California Supreme Court. Contact Barsamian & Moody for help assessing and modifying any on-call or call in procedures.The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.