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California Court Issues Important Ruling on “Reporting Time Pay” Rule


In employment, many employees may find themselves subject to “on-call” scheduling. If you are not familiar with the practice, here is how it works. Rather than establishing an employee’s schedule in advance, the employer assigns “on-call shifts.” For each day there is a scheduled on-call shift, the employee needs to either call into work, or physically report for duty, before learning if they are needed that day.

Under California law, the state’s labor regulations state that employees are entitled to “reporting time pay” when they are “required to report for work and [do] report” but are not actually “put to work,” or they only work for less than half of what is their normal working day.

2nd District: Employer Must Pay for On-Call Shifts, Even if Workers Do Not Physically Report

In a recent published decision, Ward v. Tilly’s Inc., the California Second District Court of Appeal addressed the question of whether California’s reporting time pay rule only applies to situations where the on-call employee must physically report to the job site. That is to say, the defendant in this case said the rule did not apply to its policy, which only mandated that the employee call in from home to see if they need to report on a given day. The appeals court disagreed with this interpretation of the law, and ruled the plaintiff could proceed with her claim that she was illegally denied pay for on-call days when she did not physically report to work.

Here is a brief overview of the facts.

The defendant owns a department store. The plaintiff worked as a sales clerk. The defendant scheduled the plaintiff and other employees using a combination of regular and on-call shifts. or each on-call shift, the employee needed to call their store two hours before the stated start of the shift to learn if they needed to report for work. But the defendant’s policy also emphasized that an employee should “consider an on-call shift a definite thing until they are actually told they do not need to come in.”

If an employee failed to call-in within the two hour window, they were subject to a written reprimand. An employee who received three such reprimands could be fired. Despite this strict policy, the defendant did not pay employees for on-call days where the employee called in and was told she was not needed.

In 2015, the plaintiff filed a class action, alleging the defendant’s policies did not comply with California regulations. Although a trial court sided with the defendant and dismissed the class action complaint, the Second District reversed. It held that since “on-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts,” they were entitled to compensation regardless of whether or not they physically reported to work. Indeed, the Court observed the defendant’s policy at-issue here was “precisely the kind of abuse that reporting time pay was designed to discourage.”

How Will This Decision Affect Your Workplace?

The Second District’s decision only allows the class action to proceed. It is not a final ruling on the merits. Still, it sets an important precedent for all California employers going forward. If you have questions or concerns about how this ruling may affect your rights as an on-call worker, you should speak with an experienced California employment law attorney today.

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* Cathleen Scott is licensed to practice in Florida only.

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