Thursday, March 7, 2019

Requiring a Nonexempt Employee to Call-In to Work May Require Providing Reporting Time Pay On February 4, 2019, the California Court of Appeal issued its ruling in Ward v. Tilly's, Inc. The Court held that employers requiring a nonexempt employee to report in by telephone, text message, or computer before a possible on-call shift to find out whether to report to work may be required to provide reporting time pay. (Read more about the case here) The case related to retail (Wage order 7), but I asked WECA Attorney extraordinaire Dennis Cook if this could apply at some future date to wage order 16. His response is as follows:
 
We would argue that the Tilly's decision was limited to the retail industry scheduling practice. The court held that the "on-call scheduling alleged in this case triggers Wage Order 7's reporting time pay requirements." The court chastises this practice that is fairly prevalent in the retail industry: "Reporting time pay requires employers to internalize some of the costs of overscheduling, thus encouraging employees to accurately project their labor needs and to schedule accordingly. The court notes that the text of Wage Order 7, alone, is not determinative; thus, it discusses "unpaid on-call shifts".

We are nervous that the reasoning could be extended to the construction industry due to the inconveniences employees experience if they must call before reporting to the jobsite. This is not overscheduling like that which occurs in retail, but there are some similarities. As the Tilly's court observed:

"[When] Tilly's tells the employee at 8 a.m. that she is not needed for the on-call shift, she will not be paid anything for that shift. Nevertheless, she will necessarily have forgone sleeping, working another job, taking a class, etc. both at 8 a.m. and between 10:00 a.m. and 12:00 p.m. In short, the employer will have imposed to some degree on four hours of the employee's time-an imposition for which it will not owe the employee any compensation."

That same rationale could apply to the requirement that the construction employee call-in to see if work is available.
 
A word to the wise - if you require workers to call ... you could be the next Tilly's. If you have questions, consult your legal counsel.