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.