Tuesday, November 29, 2022

Reporting to Work: No Physical Presence Required

Last week, the Second District California Court of Appeal ruled that on-call employees are entitled to reporting time pay if they are required to contact the employer to see whether they must actually report to work.

This significant wage and hour case (Ward v. Tilly’s Inc., CA2/3 B280151 2/4/19) applies to employees governed by Wage Order 7 (Mercantile Industry).

In a class action lawsuit, retail employees claimed that they were entitled to reporting time pay because they were required to call in to find out whether they needed to physically report to work two hours before their scheduled shift would begin.

Potential Game-Changer

This ruling is a potential game-changer because this decision:

• Broadens the application of reporting time pay for retail employers—employees must be paid reporting time when they call in to find out if they have to work their shifts instead of physically reporting to work only to find there is no work to be performed.

• Departs from the general rule that on-call pay is only required if the employee is restricted in his or her activities while on-call.

Rationale

While this case was brought under Wage Order 7, it is only a matter of time before other courts adopt the same rationale for other wage order claims. The court explained:

“As thus interpreted, the reporting time pay requirement operates as follows: If an employer directs employees to present themselves for work by physically appearing at the workplace at the shift’s start, then the reporting requirement is triggered by the employee’s appearance at the job site. But if the employer directs employees to present themselves for work by logging on to a computer remotely, or by appearing at a client’s job site, or by setting out on a trucking route, then the employee ‘reports for work’ by doing those things.”

Employers governed by Wage Order 7 should consult with legal counsel to determine what impact this decision may have on their workplace policies.

California Chamber of Commerce employment law experts will cover this significant court ruling in an upcoming issue of our HRCalifornia Extra newsletter. To subscribe to this free newsletter, visit www.calchamber.com/newsletters.

Not a member? See what CalChamber can do for you at www.calchamber.com/membership.

Staff Contact: Erika Frank

Erika Frank
Erika Frank
Erika Frank, longtime general counsel and executive vice president of legal affairs for the CalChamber, accepted an of counsel position in September 2021 at the Shaw Law Group, a leading employment law firm in Sacramento. She leveraged more than two decades of legal, governmental and legislative experience in advising the CalChamber and its members on the impact that labor laws, court decisions and regulations will have on employers. She has been the most frequent host of The Workplace podcast; oversaw and contributed to CalChamber labor law and human resources compliance publications; co-produced and presented webinars and seminars; and headed the Labor Law Helpline. She holds a B.A. in political science from the University of California, Santa Barbara, and earned her J.D. from the McGeorge School of Law, University of the Pacific.

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