Dive Brief:

• A clothing retailer's on-call scheduling practices triggered reporting time pay requirements under California law, ruled a state appeals court (Ward v. Tilly's, Inc., B280151 (Cal. App. Ct. Feb. 4, 2019)).
• Employees were assigned on-call shifts but were not told whether they were actually working until they called in two hours ahead of time. They were not paid unless they were actually told to come in to work; no compensation was paid for their on-call time.
• The court agreed with the plaintiff that employees were "reporting for work" within the meaning of state law (Wage Order 7) when they called in, and were therefore entitled to pay even though they were ultimately not required to come in and work that day.

Dive Insight:

Among other requirements, California's Wage Order 7 requires employers to pay employees "reporting time pay" for any day an employee is asked to report for work. In such cases, if the employee is not put to work or is assigned less than half of a usual shift, the employer is still required to pay some of their wages. The employer in this case, Tilly's, argued that employees "report to work" only when they physically show up at the start of a scheduled shift.

The court disagreed, noting that "on-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts — but who nonetheless receive no compensation from Tilly's unless they ultimately are called in to work. This is precisely the kind of abuse that reporting time pay was designed to discourage."

California employment laws are often more protective of employees than federal employment laws are, and the on-call pay rules are no exception. Under the federal Fair Labor Standards Act (FLSA), an employee is generally considered "on call" only if he or she is required to remain on the employer's premises. According to the Wage and Hour Division, "An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call," though "additional constraints" could require the time to be compensated.

It's important to note that this case addressed only the Tilly's system specifically and "did not hold that calling in to work qualified as reporting for all purposes," say attorneys from Sheppard, Mullin, Richter & Hampton LLP.

Additionally, attorneys from Fisher & Phillips LLP advised California employers to exercise caution following the ruling: "[T]he case left many questions unanswered and, as a result, you should be careful to craft scheduling policies that avoid the same pitfalls seen in that case." The authors recommended calling employees rather than requiring employees to call in, making reporting optional rather than mandatory, and not disciplining employees who fail to respond to check-in calls.