Bryan Little, Farm Employers Labor Service

Feb. 19, 2019

The California Court of Appeal recently held that reporting time pay is owed to an employee who, upon calling in at the employer’s direction to learn if she is needed for an on-call shift, is told not to report to work. (Ward v. Tilly’s, Inc.)

According to the court, the act of calling in triggers reporting time pay in these situations, even though the employee is told not to report to work.

Subject to certain exceptions, under California’s Industrial Welfare Com­mis­sion wage orders an employee who reports to work as required but is not put to work or is furnished less than half the employee’s usual or scheduled day’s work must be paid for half the usual or scheduled day’s work, but never for less than two nor for more than four hours.

Further, an employee who reports as required for work a second time in one day must receive either two hours of additional work or pay for the second reporting.

These provisions do not apply to:

• An employer in a calendar year in which the employer never had five or more employees.
• An employee on paid standby status who is called to perform assigned work at a time other than the employee’s scheduled reporting time.

Nor do they apply when:

• Operations cannot start or continue due to threats to employees or property or when recommended by civil authorities.
• Public utilities fail to supply water, gas or electricity.
• There is a failure in the public utilities or sewer system.
• An Act of God or other cause not within the employer’s control inter­rupts work. 

According to a policy of the state labor commissioner:

[R]ain or other inclement weather that makes it impossible or unsafe to work falls into the category of “an Act of God or other cause not with in the employer’s control.” This means that if workers are sent home (either immediately upon reporting to work or during the workday) because of rain or other inclement weather, there is no obligation to pay reporting time pay.

In Ward, retail employees had to call in two hours before the start of their on-call shifts to learn if they needed to work them. An on-call shift was sometimes followed immediately by a regular shift, and the employee would call in to find out if she needed to work the on-call portion. In other instances, they were scheduled for an on-call shift immediately after a regular shift.

Employees were paid only for the time they worked if they were told to and did report for work, with no compensa­tion for time spent complying with the call-in requirement if they were not needed to work that on-call shift.

Ward sought reporting time pay for on-call shifts for which she had called in to check if she was needed but was told she wasn’t. She argued that in the modern work environment, where employees often work remotely and use their phones for timekeeping purposes, “reporting to work” should be read broadly.

Tilly’s contended that “reporting to work” required the employee’s “physical presence at the workplace at the start of a scheduled shift,” as opposed to simply verifying the work schedule in advance.

After determining the phrase was ambiguous, the appellate court looked to the purpose of the reporting time pay requirement, which it found was to compensate employees and encour­age employers to engage in proper notice and scheduling. 

The court found the defendant’s system to be extremely burdensome on employees, because it required them to be available, prevented them from working other jobs or scheduling other activities, and made child-care arrangements onerous and potentially costly. Tilly’s policy required that employees be available to call in two hours before the shift start time.

Based on these findings, the court sided with the Ward, deciding that requiring reporting time pay in these circumstances was consistent with the goals of compensating employees and encouraging employers to properly notify and schedule employee work in advance.

The court’s decision in Tilly v. Ward indicates reporting time pay might be required for employees directed to call in to check if they must work an upcoming shift. In Tilly, the court found that a call-in policy that unduly burdened an employee could trigger reporting time pay.