Tuesday, February 5, 2019

​ Ward v. Tilly's, Inc.

This appeal, which follows an order sustaining a demurrer without leave to amend, concerns the practice of on-call scheduling.  As alleged, on-call scheduling works this way:  Employees are assigned on-call shifts, but are not told until they call in two hours before their shifts start whether they should actually come in to work.  If they are told to come in, they are paid for the shifts; if not, they do not receive any compensation for having been “on call.”

Plaintiff Skylar Ward challenges the on-call scheduling practices of her former employer, Tilly’s, Inc. (Tilly’s), as violating wage order No. 7-2001 (codified at California Code of Regulations, title 8, section 11070; hereafter, Wage Order 7), which regulates the wages, hours, and working conditions in the mercantile industry.  Among other things, Wage Order 7 requires employers to pay employees “reporting time pay” for 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.”  Plaintiff contends that when on-call employees contact Tilly’s two hours before on-call shifts, they are “report[ing] for work” within the meaning of the wage order, and thus are owed reporting time pay.  Tilly’s disagrees, urging that employees “report for work” only by physically appearing at the work site at the start of a scheduled shift, and thus that employees who call in and are told not to come to work are not owed reporting time pay.

We conclude that the on-call scheduling alleged in this case triggers Wage Order 7’s reporting time pay requirements.  As we explain, on-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts—but who nonetheless receive no compensation from Tilly’s unless they ultimately are called in to work.  This is precisely the kind of abuse that reporting time pay was designed to discourage.  We therefore reverse the judgment and remand this case to the trial court for further proceedings.

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