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DO YOUR ON-CALL PROCEDURES REQUIRE REPORTING TIME PAY?

Many employers cover their staffing needs by having on-call shifts in which employees who are scheduled to be “on call” for particular shifts do not have to physically report to work unless they are told to do so, usually through some type of telephonic procedure wherein the employees are required to contact the employer before the scheduled start of the shift to find out whether they are needed to work. A recent Court of Appeal decision has concluded that, under certain circumstances, an employer’s call-in requirement can trigger reporting time obligations.

In California, Industrial Welfare Commission Orders 1 through 16, Section 5, require employers to pay employees “reporting time pay” 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 said employee’s usual or scheduled day’s work…”

On February 4, 2019, the California Court of Appeal for the Second District issued a decision that will cause California employers to review their on-call practices to determine whether their procedures trigger an obligation to provide employees with reporting time pay. In Ward v. Tilly’s, Inc. , an employee of the retail chain, Tilly’s, complained that Tilly’s on-call practice triggered reporting time pay because Tilly’s on-call policy requires all employees to treat an on-call shift as a confirmed work shift unless they call in at least two hours before the scheduled shift and are told they did not have to work. Employees who fail to call in or who refuse to work a shift for which they were scheduled to be on-call are disciplined.

The Court of Appeal determined that Tilly’s call-in procedures require employees to “report to work.” The Court of Appeal found that Tilly’s instruction to employees that an “on-call” shift must be treated as a “confirmed” work shift means that employees cannot use the on-call time to engage in their personal business such as scheduling shifts at another job, taking classes or scheduling other personal pursuits. Moreover, the Court of Appeal held that “reporting to work” is not limited to only instances where the employees physically report to work. Citing advances in communication technology since the IWC Orders were initially drafted in the 1940s, the Court concluded that “reporting to work” in today’s context is not limited to only those situations in which the employee is required to physically appear at a designated place but could also mean those instances in which the employee reports in a manner directed by the employer, such as calling in via telephone to “report to work.”

Therefore, Tilly’s requirement that all on-call shifts must be treated by employees as confirmed work shifts for which they are required to call in two hours prior to the start of the shift to find out if they must physically show up constitutes a situation in which employees are scheduled to work, report to work, then are not provided with the full amount of work for which they were scheduled. Under this scenario, Tilly’s was required to pay reporting time pay to those employees who call in for their on-call shifts and are told they did not have to work.

This article is authored by the Labor & Employment Department of SBEMP LLP, lead by Vee Sotelo. Mrs. Sotelo represents employers in a wide array of labor and employment related matters. She regularly advises and represents clients in connection with day to day human resource issues, employment policies, regulatory compliance, class action defense, wage and hour law, wrongful termination and sexual harassment matters.  Mrs. Sotelo is a frequent speaker and presenter at employment law training seminars and sexual harassment seminars.  Although Mrs. Sotelo is based in the Palm Springs office of SBEMP, she regularly represents clients throughout California. To read more about Vee Sotelo and the other attorneys in the Labor & Employment Department, please click one of the links below.

Employment & Labor Law Attorneys of SBEMP

SBEMP’S Labor and Employment Department is comprised of attorneys with decades of experience in a broad range of labor and employment matters from day-to-day counseling to labor negotiations and litigation. Our team is prepared to guide our clients through the complex myriad of employment laws affecting California employers. We assist our clients with day-to-day personnel management issues, such as drafting employment policies, managing leaves of absence, identifying potential problems in hiring and firing practices, and ensuring wage and hour compliance. Our attorneys are also experienced litigators who regularly represent clients in all types of employment litigation, including defending wage and hour class actions as well as lawsuits alleging discrimination, harassment, and retaliation. Additionally, we regularly represent clients in administrative proceedings, such as Labor Commissioner claims, CalOSHA citations, DFEH and EEOC investigations, and DLSE complaints. Our labor and employment practice is also prepared to assist clients with labor negotiations and disputes. Our labor attorneys are experienced in negotiating labor agreements as well as representing clients before the NLRB.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

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