Protecting Employee & Consumer Rights

Being on-call may entitle you to additional pay  

Alexia Herrera worked as a Sales Associate at Zumiez, Inc., a retail store in Chico, California. Zumiez scheduled Herrera and other employees for work according to two scheduling policies. First, Zumiez scheduled employees for “Show-Up” shifts, requiring the employees to physically report for scheduled work at a Zumiez store. Second, Zumiez scheduled employees for “Call-In” shifts. If the employee was scheduled for a Show-Up shift immediately before a Call-In shift, the employee had to wait until the end of the Show-Up shift to ask her manager if she would be required to work the scheduled Call-In shift.

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If the employee was not scheduled to work a Show-Up shift before a Call-In shift, then the employee was required to make a phone call to her manager between thirty minutes and one hour before the scheduled Call-In shift. The employee would then wait for the manager to determine whether the employee would be permitted to work during the scheduled shift. Phone calls for Call-In shifts generally lasted five to fifteen minutes.

Whether she had a shift before the Call-In shift or not, the employee was required to be available to work the Call-In shift. The employee could be subject to discipline for not working Call-In shifts for the same reasons she could be disciplined for not working Show-Up shifts. The employee could not schedule classes or doctor appointments, or work for other employers during the Call-In shift, and she had to make child or elder care arrangements under the assumption she would work.

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Employees were not paid for Call-In shifts unless they were permitted to work and were not paid for the time they spent on the phone with their managers. Herrera and other employees were scheduled for Call-In shifts three to four times per week; they worked approximately half of these shifts.

Herrera sued her employer in a class action, claiming, among other things, that the employer failed to pay wages for Call-In shifts that did not result in Show-Up shifts. The employer argued that California law only obligates it to pay if the employee shows up at the place of work. For Call-In Shifts, employees are only asked to call the employer, and not show up. The employees countered that being instructed to call in to work is equivalent to being asked to “report to work.”  The case reached the Court of Appeal, which had to answer this question: Does the employee have to be physically present at the workplace before she gets paid for “reporting for work”?

Under California law, if an employee is required to report to work, but is not put to work, or does not work half of the employee’s scheduled day’s 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 his or her regular rate of pay. These must be paid in addition to the hours the employee actually worked.  This is called “reporting time” or “show up” pay.

The Court noted that reporting time pay was contemplated as a “penalty” for employers who require workers to be available for contingencies without paying them. Allowing employees to report to work when there is little or no work is “serious abuse.” The reporting time pay is meant to combat this abuse and encourage employers to properly schedule employees.

Requiring employees to be on On-Call shifts is similar to requiring employees to come to work without a guarantee of work. On-Call employees create a pool of contingent workers available to the employer without necessarily having to pay any of them.  The court pointed out that even though there was no transportation cost or significant lost time incurred by the employees in the On-Call shift situation, there are “tremendous costs on employees.”

An employee, therefore, need not necessarily appear at the workplace to `report for work.’ Instead, `reporting for work’ is best understood as presenting oneself as ordered. It is the employer who directs the manner in which the employee is to present himself or herself for work – whether at the worksite or by phone. Either way, reporting time must be paid.

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.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. 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, and is a past Presidential Awardee for Outstanding Filipino Overseas.] 

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TAGS: California labor law, call-in shift, employee rights, on call pay, on call shifts, show up shift
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