Predictive scheduling laws have recently received a great deal of attention. Although California is considering passing statewide predictive scheduling laws, individual entities like the City of San Francisco have already enacted similar legislation. The push for predictive scheduling is to provide workers with stability and predictability by allowing them advance notice of their work schedules.
Similar to predictive scheduling laws, the Wage Orders require employers to pay employees that are required to report to work but are not permitted to work. In the past, courts have interpreted “reporting to work” as being physically present at the workplace. However, is using modern technology, such as cell phones, email, and the internet to report to work considered “reporting to work?” An appellate court addressed this question in Ward v. Tilly’s, Inc., 2nd Appellate Dist. Case No. B280151 (filed Feb. 24, 2019) (Ward).
Facts of the Case
In Ward, the Plaintiff was a sales clerk for the clothing chain, Tilly’s. In additional to normal shifts, Tilly’s assigned certain employees to “on-call” shifts. These shifts provided Tilly’s with the ability to quickly increase or decrease a store’s staffing needs.
Each on-call shift had a specific start and end time. An employee assigned to an on-call shift was required to contact Tilly’s two hours prior to the start of the shift to determine if he or she needed to work. An on-call shift was considered a scheduled shift until an employee was informed that he or she was not required to work. An employee was disciplined if he or she did not contact the store before an on-call shift, contacted the store late, or refused to work an on-call shift.
Plaintiff filed a class action alleging that Wage Order No. 7 required Tilly’s to provide reporting time pay for on-call employees that were: 1) required to report to work but were provided less than half of their usual or scheduled day’s work; or 2) required to report to work a second time in a workday and provided with less than two hours of work. See Cal. Code regs. tit. 8, § 10070, subd. (5) (Wage Order No. 7).
For the first violation, an employee is entitled to “half the usual or scheduled day’s work” which cannot be less than two hours, but cannot exceed a maximum of 4 hours, at the employee’s regular rate of pay. Wage Order No. 7, subd. (5)(A). For the second violation, an employee is entitled to two hours of pay. Id., subd. (5)(B).
Plaintiff alleged that on-call employees “reported for work” when they called Tilly’s to determine if they were required to work. Therefore, Tilly’s violated Wage Order No. 7 when it did not provide on-call employees, who had their shifts canceled or shortened, reporting time pay.
Tilly’s argued that the act of calling in by telephone did not qualify as reporting to work. In order to “report to work,” an employee must be physically present at a Tilly’s store. The trial court agreed with Tilly’s interpretation of “reporting to work,” and sustained Tilly’s demurrer without leave to amend. Plaintiff appealed the trial court’s dismissal order.
Appellate Court’s Ruling
On appeal, the Second District Court of Appeal held that on-call employees calling in to determine if they were scheduled to work qualified as “reporting to work.” The appellate court emphasized that the purpose of the Wage Order’s reporting time requirement is to ensure that employers provide proper notice of work schedules and compensation for employees.
The appellate court gave the following reasons for its ruling. First, permitting employers to schedule workers to be ready and able to work, without actually compensating employees for this time, discourages employers from making competent scheduling decisions. Without reporting time pay, employers are incentivized to keep a large pool of contingent workers on standby for staffing shortages, but able to prevent individuals from working without financial consequences.
Second, on-call schedules impose major costs on workers. Workers are prevented from using their time to pursue higher education, forced to spend resources on child or elder care arrangements, and prevented from earning additional income at another job. On-call workers must incur these expenses, even if an employer chooses not to allow them to work.
Third, Tilly’s requirement to call two hours prior to the start of an on-call shift prevents an employee from using this time for his or her own purposes. The employee cannot schedule time with family members, engage in personal activities, or travel to areas without cell phone service.
The appellate court’s ruling was based on a 2-1 decision. Justice Egerton dissented and held that an employee must physically appear at the worksite in order to “report of work.” Although the appellate court held that an employee under Tilly’s on-call policy reported to work, the court declined to make a blanket ruling that an employee “reported to work” anytime that he or she contacted an employer to check his or her work schedule.
If you have questions about reporting time pay or your rights in the workplace, please feel to contact Hunter Pyle Law at (510) 444-4400 or email@example.com.