California employers should re-evaluate their reporting policies

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The California Court of Appeal’s decision in Ward v. Tilly’s, Inc. is a warning that employees must be provided reporting time pay when an employer requires its employees to call in two hours before a potential shift to learn whether the employee is needed for work and the employee is told not to come into work that day. To be clear, “reporting to work” is not limited to the when the employee physically appears at work but is sent home early.

The court’s decision noted that the concept of “report to work” in light of developments in technology, such as cell phones, is subject to an updated interpretation. Notably, the court did not hold that calling into work under all circumstances constituted reporting. Indeed, the court expressly limited the holding that reporting time pay was required to the on-call system before it – one that gave employees two hours’ notice and disciplined employees for noncompliance - so it is yet to be seen how Ward will be applied to other on-call systems. The on-call system before the court was one whereby employees were required to call their stores two hours before the start of an on-call shift to determine whether they were needed to work the potential shift and the employees were informed to “consider an on-call shift a definite thing until they are actually told they do not need to come in.” However, the on-call shifts were not included as part of the employees’ “scheduled day’s work” when wages were calculated unless the employee was actually required to work the on-call shift. The court held that the employees were due reporting time pay for those on-call shifts even if the employee was told not to come into work that day.

Ward is reminder to employers that they should have their reporting policies and specifically, on-call systems, evaluated for compliance, and even consider whether to utilize an on-call system at all.