Should you still be paid for ‘call-in’ shifts that result in no work?

Skylar Ward worked as a sales clerk in a Tilly’s store in Torrance, California. Tilly’s is a multi-million dollar clothing company that has stores in several states. During her employment with Tilly’s, Ward and other employees were scheduled for a combination of regular shifts and “on-call” or “call-in” shifts.

Employees were required to contact their stores two hours before the start of their on-call shifts to determine whether they were needed to work those shifts. Tilly’s informed its employees to “consider an on-call shift a definite thing until they are actually told they do not need to come in.” However, employees are not told until they call in two hours before their shifts start whether they should actually come in to work. If they are told to come in, they are paid for the shifts. They are not paid anything if they are told not to come in.

Ward sued Tilly’s claiming that its on-call scheduling practices violated California law. Under California law, if an employee is required to report to work, but is not put to work, the employee is paid a half-shift reporting wage of at least two hours but not to exceed four hours. Generally, if an employee is required to show up a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at the regular rate of pay. These hours must be paid in addition to the hours the employee actually worked.  This is called “reporting time” or “show up” pay.

Skylar Ward sued Tilly’s claiming that its on-call scheduling practices violated California law.

The employees argued that when they contact Tilly’s two hours before on-call shifts, they are “report[ing] for work” within the meaning of the law, and thus are owed reporting time pay. Tilly’s disagreed and asked the trial court to throw out the case. Tilly’s argued that employees “report for work” only by physically appearing at the work site at the start of a scheduled shift. Thus, employees who call in and are told not to come to work are not owed reporting time pay.

The trial court agreed with the employer and dismissed the case. The employees appealed. The appellate court tried to determine the meaning of the phrase “report for work.” Does it mean being at the location at the specified day and time, or does it include the employee reporting by telephone two hours before the scheduled shift? The court ultimately had to examine the intent of the the law, which is to encourage employers to properly schedule employees, and not waste employee’s time with haphazard scheduling.

The court noted that unpaid on-call shifts impose tremendous costs on employees. Because employees need to be available to work on-call shifts, this significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.

Moreover, because employees must contact Tilly’s two hours before the start of on-call shifts, their activities are limited not only during the on-call shift, but two hours before it as well. An employee who has been scheduled for an on-call shift from 10:00 a.m. to 12:00 p.m., and who must call in at 8 a.m., but was then told that she is not needed for the shift, will not be paid anything for that shift. However, between 8 a.m. and 12:00 p.m. she will have been unable to schedule anything else (for example, sleep, take a class, or work a second job) as this block of time would have been reserved for the employer. This unfair situation is what the reporting time pay law seeks to correct.

The appellate court, therefore, sided with the employees by ruling that they are owed reporting time pay for being on-call, actually calling in to work, and not being put to work.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.comor our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, is the recipient of PABA’s Community Champion Award, and is aPresidential Awardee for Outstanding FilipinoOverseas in 2018.]