California Employers May Owe Reporting Time Pay To Employees Who Do Not Actually Report For Work

In a 2-1 ruling on February 4, 2019, the Second Appellate District of the California Court of Appeals expanded requirements for reporting time pay by ruling that a California employer would owe reporting time pay if it requires an employee to call in to confirm a scheduled on-call shift, even when the employee does not actually report for work.

Like many retailers, Tilly’s, Inc. scheduled its retail employees for both regular and on-call shifts. For on-call shifts, Tilly’s required employees to call exactly two hours before the start of the shift to confirm whether they were to report for work or not. If the on-call shift was scheduled on or before 10:00 a.m., employees had to call the night before at 9:00 p.m. Tilly’s instructed employees to consider on-call shifts “a definite thing” until they were told not to report. If employees called late, failed to call, or refused to work on-call shifts, they were subject to formal discipline, which could include termination. Employees were not compensated for on-call shifts unless they were required to physically report for work.

Skylar Ward, a former Tilly’s retail employee, brought a putative class action, alleging that Tilly’s failed to provide reporting time pay for on-call shifts pursuant to California’s Industrial Welfare Commission (IWC) Wage Order No. 7. Specifically, Wage Order No. 7 requires payment of reporting time pay ranging from two to four hours’ wages if (a) an employee is required to “report for work and does report,” but is not put to work or works less than half of his or her usual or scheduled day’s work, or (b) an employee is required to report for work a second time in a workday, but works less than two hours in the second reporting. The phrase, “report for work,” is not defined in Wage Order No. 7, and for the past 75 years no further definition was needed; California employers provided reporting time pay only when an employee actually did physically “report for work.” As such, the trial court agreed with Tilly’s and dismissed the case, on the basis that merely calling in to confirm a shift, without physically reporting, does not constitute “report[ing] for work” to trigger reporting time pay. Ward appealed. (Ward v. Tilly’s Inc., No. B280151, 2019 WL 421743 (Cal. Ct. App. Feb. 4, 2019).)

The Court of Appeals reversed the trial court’s order, ruling that Tilly’s alleged failure to provide reporting time pay to employees who called in to confirm on-call shifts would violate Wage Order No. 7. The Court emphasized that Tilly’s on-call policies in particular, which required employees to call exactly two hours prior to the start of the on-call shift and imposed strict discipline for failing to timely call, yielded an imbalanced benefit to Tilly’s at the expense of the extensive burdens placed on its employees. For example, Tilly’s on-call shifts prevented its employees from taking other jobs, pursuing an education, caring for loved ones, committing to social plans, or otherwise enjoying off-duty recreational time simply because they had to be available to confirm an on-call shift, for which they may not even be called in (or compensated).

The Court first reasoned that the phrase “report for work” is ambiguous enough that the Court needed to consider the legislative history of the Wage Orders. The Court then cited the Wage Orders’ purpose of protecting employees and broadly interpreted the phrase, “report for work,” to include more than just physical presence in the workplace. Assuming that the IWC had been presented with the issue of telephonic call-in requirements when the Wage Orders were created, the Court concluded that the IWC would have deemed that Tilly’s on-call practices triggered reporting time pay because they “have much in common with the specific abuse the IWC sought to combat by enacting a reporting time pay requirement.”

The Court also appealed to the California Supreme Court’s 2016 ruling in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 263, to emphasize the notion that off-duty time is not truly off-duty “if an employer limits the kinds of activities employees can engage in during off-duty time.” While the facts in Augustus and Ward are distinguishable, these rulings suggest a trend by California courts in treating any time that employees remain ready or on-call as compensable regardless of whether they are physically called on to work.

Although the holding in Ward concluded that Tilly’s fact-specific, on-call policies triggered reporting time pay, it is still unclear how this particular holding will apply to on-call policies and procedures in other factual circumstances. For example, the Court did not allude to an acceptable timeframe in which employees can call in to avoid reporting time pay requirements, nor did the Court address retroactive application of its holding. Also, the ruling may be extended beyond the retail industry to those industries and occupations covered by other Wage Orders containing the same language and requirements for reporting time pay, such as the manufacturing, personal services, housekeeping, and transportation industries, and agricultural and household occupations. As a result, California employers in each of these industries and occupations should carefully consider the result in Ward and be mindful of the legal trend to treat on-call time as compensable. Employers should promptly assess their scheduling and on-call policies in comparison to those in Ward to ensure proper compensation and compliance.