February 7, 2019

On-Call Check-In Now Requires Reporting-Time Pay in California

Employers who require nonexempt employees to check in to find out whether they must report to work that day must pay those employees “reporting time” under the applicable wage order. Under a sweeping Court of Appeal decision, when an employee calls in but is not put to work or is furnished less than half of their usual or scheduled day’s work, they may be entitled to reporting time pay, whether or not they actually reported to work

In Ward v. Tilly’s, Inc., the plaintiff sued retailer Tilly’s over its scheduling policy which required employees to call in to the store two hours before on-call shifts to find out if they have work, allegedly in violation of Wage order 7 (which applies to the mercantile industry).

Similar to other wage orders, Wage Order 7 requires employers to pay employees “reporting time 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 plaintiff contended that when on-call employees contact Tilly’s two hours before on-call shifts, they are “report[ing] for work” within the meaning of the wage order, and thus are owed reporting time pay.  In its defense, Tilly’s argued that employees “report for work” only by physically appearing at the work site at the start of a scheduled shift, and therefore employees who call in and are told not to come to work are not owed reporting time pay.

The Court of Appeal disagreed with Tilly’s, finding that on-call scheduling alleged in the case triggers reporting time pay requirements under the wage order. As the court explained, “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.”

Employers who require employees to check in (by phone, text, etc.) prior to an on-call shift to find out if work is available, are urged to review their on-call policies with experienced employment counsel and determine whether non-exempt employees should be paid reporting-time pay for calling in.

For more information regarding on-call check-ins contact Jason Resnick at (949) 885-2253