A recent California Court of Appeal ruling significantly expands the conditions under which the reporting time pay rule in California will apply. Skylar Ward v. Tilly’s, Inc. involved retail clothing store workers who were assigned on-call shifts, but did not know if they must report to work for each shift until they made a required call to the employer two (2) hours in advance of the shift.

Under all California Wage Orders, including Wage Order No. 7 that applies to retail workers, reporting time pay must be paid 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 of the employee’s usual or scheduled day’s work.  Pay required is 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.

In Skylar Ward v. Tilly’s, Inc., the court ruled that reporting time pay was triggered when employees had to call-in to find out if they were needed for a shift, and were told they were not needed.  Reasoning that an employee need not physically appear at the workplace to trigger the “report to work” requirement of the reporting time rule, the court ruled that presenting him or herself “as ordered” was sufficient, which in this case meant calling-in at a precise time to find out if they must report to work.

The decision focused on the burden that on-call shifts place on employees, causing them to forego other employment, educational or personal activities or opportunities, and the constraint placed on employees by having to call-in at a particular time.  Further, the court noted that employees were disciplined for failing to call, calling in late, or refusing to work an on-call shift.

Representing a significant departure from past interpretations of the reporting time rule, the ruling should prompt all California employers to carefully review their on-call policies.To avoid the perils of the reporting time pay requirement, policies should include a roster of employees who may be contacted for on-call work, avoid penalties for an employee’s unavailability for an on-call shift, and provide sufficient time to appear at work or return a call after being contacted to appear. 

The author would like to gratefully acknowledge the assistance of Joanne Warriner.  

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