“On-call” time may be compensable in some instance, and not compensable in others. It has to whether you are “engaged to wait,” or “waiting to be engaged.” They may sound the same, but one is compensable and the other is not. In Ward v. Tilly’s, Inc., the court had to decide whether the company’s call-in requirements for their “on-call” employees meant the employees were entitled to “reporting time” pay when they called in to get their shifts. The answer may surprise you.
On-Call Shifts and Reporting Time Pay
Tilly’s, Inc. assigns certain employees “on-call” shifts. The on-call employees must call in two hours before their shifts start to find out whether they should actually come in to work. If they are told to come in, they are paid for the shifts; if not, they do not receive any compensation for having been “on call.”
Plaintiff Skylar Ward challenges the on-call scheduling practices claiming the single phone call constitutes “reporting for work. Tilly’s argued that employees “report for work” only by physically appearing at the work site at the start of a scheduled shift, and that employees who call in and are told not to come to work are not owed reporting time pay.
Employees were disciplined if they failed to contact their stores before on-call shifts, or if they contacted the stores late, or if they refused to work on-call shifts.
Wage Order 7, like most wage orders, contain the following regulations regarding reporting time pay:
(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.
(B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: [¶] (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or [¶] (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or [¶] (3) The interruption of work is caused by an Act of God or other cause not within the employer’s control.
(D) This section shall not apply to an employee on paid standby status who is called to perform assigned work at a time other than the employee’s scheduled reporting time.”
Cal. Code Regs., tit. 8, § 11070, subd. (5),
The court agreed that when the reporting time pay provisions were created in the 1940’s the phrase “report for work” meant physically showing up. Even though calling in from one’s cell phone is less burdensome than physically showing up at the worksite, the court concluded that the on-call scheduling alleged in this case triggered the wage order’s reporting time pay requirements.
Because Tilly’s requires employees to be available to work on-call shifts, they cannot commit to other jobs or schedule classes during those shifts. If they have children or care for elders, they must make contingent childcare or elder care arrangements, which they may have to pay for even if they are not called to work. And they cannot commit to social plans with friends or family because they will not know until two hours before a shift’s start whether they will be available to keep those plans. In short, on-call shifts significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.
Further, because employees must contact Tilly’s two hours before the start of on-call shifts, their activities are constrained not only during the on-call shift, but two hours before it as well. That is, at the time employees are required to call in to find out whether they will be required to work on-call shifts, they cannot do things that are incompatible with making a phone call, such as sleeping, watching a movie, taking a class, or being in an area without cell phone service.
Reporting Time Pay Protects Employee Welfare
Quoting the IWC, the court confirmed “[t]he requirement for reporting time pay historically has been included in the commission’s orders on the basis that it is necessary to employee[s’] welfare that they be notified in advance when changes in their starting time must be made. It has been deemed a [maximum] of four hours’ pay adequate to encourage proper notice and scheduling.”
The IWC’s purpose in adopting reporting time pay requirements was two-fold: to “compensate employees” and “encourage proper notice and scheduling.”
The court confirmed that employers do not trigger reporting time pay requirements merely by expecting employees to apprise themselves of their schedules. Tilly’s ran afoul of the reporting requirements because it “did not merely require employees to check their schedules as a necessary predicate to getting to work on time—it required employees to call in exactly two hours before the start of on-call shifts, and it ‘treat[ed] calling in late for an on-call shift or failing to call in for an on-call shift the same as missing a regularly scheduled shift.’”
If you have questions about on-call time or the pay practices in your workplace, contact the Nuddleman Law Firm, P.C. Robert Nuddleman has represented employees and employers in wage and hour matters for almost 25 years.
Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.
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