Seyfarth Synopsis: Traditionally, "report for work" has meant physically showing up at the jobsite, ready to work. Only then might an employer be liable for reporting pay for failing to provide work to the employee who reported for work as scheduled. Now, however, an activist California judicial interpretation makes the employer liable for reporting pay if the employer requires employees on an on-call schedule to telephone the employer two hours prior to the shift and if the employer then fails to provide work to employees who have complied with this requirement to report their availability for work.
Skylar Ward worked as a sales clerk in a Tilly's store in California. Tilly's employees allegedly were assigned on-call shifts, but were not told until they called in—two hours before their shift—whether they should go in to work that day. If they were not needed for work, they did not get any pay for having been "on call." Ward sued Tilly's for reporting pay, arguing that Tilly's was liable under provisions of California's Wage Order 7 (for retail employers), which requires employers to pay "reporting time pay" for each workday an employee must "report for work" and does report, but is not put to work or receives less than one-half the usual or scheduled day's work.
Ward contended that when she contacted Tilly's two hours before her on-call shift, she was "report[ing] for work" and, thus, was owed reporting time pay if Tilly's did not need her that day. Tilly's countered that employees "report for work" only when they physically present themselves at the jobsite. Employees who merely call in and are not asked to work that day are, therefore, not owed reporting time pay. As the Court of Appeal described it, "the dispute turn[ed] on the meaning of 'report for work,' a phrase Wage Order 7 uses, but does not define."
The trial court dismissed Ward's case, explaining that "merely calling in to learn whether an employee will work a call-in shift" does not amount to "report[ing] for work." Ward appealed.
The Appellate Court Decision
The Court of Appeal reinstated Ward's claim, holding that "an employee need not necessarily physically appear at the workplace to 'report for work.'" Instead, an employee "reports for work" when s[he] presents him or herself "as ordered." The Court of Appeal said that "report for work" "does not have a single meaning, but instead is defined by the employer." So if an employer directs employees to present themselves for work by calling two hours before the shift, then the reporting time requirement under Wage Order 7 is triggered by the call.
The two-justice majority opinion by the Court of Appeal, citing notions of public policy, opined that "[r]eporting time pay requires employers to internalize some of the costs of overscheduling, thus encouraging employers to accurately project their labor needs and to schedule accordingly. Reporting time pay also partially compensates employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite." Unpaid on-call shifts impose tremendous costs and burdens on employees—"precisely the kind of abuse [by employers] that reporting time pay was designed to discourage." A strong dissenting opinion pointed out that policy considerations of this sort are for the Legislature, not the courts, and if the Legislature wants to create an expanded definition for "report for work"—which traditionally has always meant to show up physically at the jobsite, ready to work—then the Legislature can, and should, make that change itself; judges should not rewrite the law to guess at the result the lawmakers might have intended.
What Ward Means to Employers
Under Ward, employees "report for work" if, while subject to an on-call schedule, they comply with the employer's requirement to call before the shift to see if they must actually go in to work. Employers subject to reporting-pay Wage Order provisions should therefore consider re-structuring their on-call scheduling to minimize unintended liability for reporting time.
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