Reporting Time Pay Required for Employees Who Call In To Determine If They Will Work An On-Call Shift

By Swerdlow Florence Sanchez Swerdlow & Wimmer

February 15, 2019

Employees scored another legal victory in a case that expands the scope of what it means to “report to work.”  In Ward v. Tilly’s, Inc., a California Court of Appeal held that an employee is entitled to reporting-time pay when an employer requires the employee to call in two hours before a potential shift to learn whether the employee is needed for work.  In a precedent-setting decision, the Ward court held that an employee is entitled to at least two hours of pay for calling to see if they need to work an on-call shift, even if the employee is told not to come to work and does not perform any work.   

In Ward, the plaintiff filed a class-action complaint alleging that the defendant retail chain scheduled its employees for a combination of regular and on-call 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.  The plaintiff alleged that, by calling in to determine if they are required to work, employees “report” to work and are entitled to reporting-time pay.  Tilly’s argued that employees who merely call in and are told not to come to work are not owed reporting time pay because they never “reported to work.”  The trial court agreed with employer.

At issue on appeal was the meaning of the phrase “report to work” in California’s Industrial Welfare Commission Wage Orders.  Most Wage Orders require employers to pay employees reporting time pay as follows:

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, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, a the employee’s regular rate of pay, which shall not be less than minimum wage.

The Ward court held that an employee need not, as a policy matter, physically appear at the workplace to “report for work.”  The court reasoned that reporting 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.” Additionally, it 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.”

In light of Ward, employers should avoid having employees call in to determine if they are required to work a potential shift out of concern that, if not put to work, the employer still would owe reporting-time pay to the employees.