California’s Wage Orders require “reporting time pay.” This means that if an employer requires an employee to “report” for work on an employee’s usual or scheduled day, and then the employer fails to put the employee to work, the employee is owed at least 2 hours and possibly 4 hours at the employee’s “regular rate of pay.” See IWC Wage Order 7-2001, § 5(A) (“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 employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.”)
In Herrera v. Zumiez, Inc., — F.3d — (9th Cir. March 19, 2020), the issue was whether an employee who calls in to work to determine if the employee will work on any given day, as many retail and other employers require, is owed reporting time pay. Plaintiff Herrera worked as a sales associate for Defendant Zumiez, a retailer with stores throughout California and the United States. The court found that plaintiff adequately alleged a claim for reporting time pay by asserting that she and other employees were required to call their managers thirty minutes to one hour before their call-in shifts, that these calls were required three to four times per week and lasted five to fifteen minutes, and that plaintiff and the employees could be disciplined for failing to comply with the call-in shift policy.
Herrera relied on another California case published in 2019, Ward v. Tilly’s, Inc., 31 Cal.App.5th 1167 (2019), that decided a strikingly similar issue. There, retailer Tilly’s required plaintiff (a sales clerk) and other employees to call in two hours before their scheduled shift whether they should actually come into work or not. If the employee was told to come in for a shift, they are paid; if not, they did not receive any compensation for being “on call.” In overturning the trial court’s dismissal, the appellate court held that on-call shifts require the payment of reporting time pay because it impacts employees significantly, including precluding them from taking other jobs, going to school, or making other plans during the on-call shifts.
If you or someone you know has been subject to the scheduling of on-call or call-in shifts, or your employer has failed to provide reporting time pay for scheduled shifts, please call an attorney at Shanberg, Stafford & Bartz LLP for a free consultation.
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