Does on-call mean on the job?

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Employers have long struggled to make sense of the changing laws regarding when to pay employees whom they don’t perceive as actually working but who aren’t entirely free. In May, we reported that in Ward v. Tilly’s, a California appellate court ruled that employees can be deemed to be “reporting to work” and entitled to reporting time pay for merely calling in to determine whether they must come to work. In August, a trial court applied Ward retroactively to find that employees of a fast-food restaurant who are required to block off time for call-in shifts but are not paid, also may be entitled to pay for this time. Earlier in this case, Monroy v. Yoshinoya, the judge ruled that an employee who is required to be available and call in for an on-call shift is essentially reporting to work. “In the modern era where many workers complete their tasks remotely using telephones to clock in or clock out for time-keeping purposes and . . . check for shifts telephonically, the common sense and ordinary reading of the [wage] order would include the reporting that plaintiffs engaged in.” According to most California wage orders, when an employee is required to report to work but is not put to work or provided with at least half the usual or scheduled work, the employee is entitled to half the usual or scheduled work, or no less than two but no more than four hours or pay. It takes little imagination to realize how quickly such liability can mount.

In light of rulings like Ward and Monroy, employers should reassess their scheduling processes and determine whether having employees call in really serves their purposes. Although it might seem to make supervisors’ and dispatchers’ work easier if they can simply sit back and wait for employees to call, then either have them come in or not, these rulings suggest that such a luxury may be extremely expensive. A better option may be to call employees when work is needed and simply allow those who want to work to accept the opportunity. Employers with fluctuating workflow whose needs truly change unpredictably from day to day may need to keep some form of call-in procedure, but the less the onus is placed on employees, the less likely it will result in liability. Contact your employment lawyer for guidance on managing or revising call-in systems to maximize their utility to you while minimizing their cost.