Exclusively Employment Law

Ward v. Tilly’s Inc. – Reporting Time Pay and On-Call Shifts

by | Mar 5, 2019 | Wage and Hour

Originally Published on March 5, 2019; Revised on July 25, 2021

Under California law, employers must pay “reporting time pay” to nonexempt employees in certain circumstances.

What is “reporting time pay?” Let’s say that you are a nonexempt employee and you report to work that day as required by your employer. However, upon reporting to work, (a) you are not put to work; or (b) you are put to work for less than half of the amount of time that you were supposed to work that day. In either scenario, under California law, your employer must pay you for one-half of the amount of time that you were supposed to work that day at your regular rate of pay, but in no event for less than two hours or for more than four hours.

In Ward v. Tilly’s, Inc., 31 Cal.App.5th 1167 (2019), the California Court of Appeal expanded the scope of employees’ right to receive reporting time pay. Specifically, the Court of Appeal held that in certain circumstances, an employer must pay reporting time pay to a nonexempt employee who is required to call the employer before his/her actual work shift in order to find out if he/she needs to come to work that day. The salient facts of Ward v. Tilly’s, Inc. are set forth below:

Plaintiff was a sales clerk at Tilly’s, Inc. (“Tilly’s”). During her employment with Tilly’s, Plaintiff was scheduled for regular and “on-call” shifts. For “on-call” shifts, Tilly’s required Plaintiff to call the store two hours before the start of her on-call shift to find out whether she needed to work the on-call shift that day.

If, upon calling the store, Plaintiff learned that she must come to work (and she accordingly came to work and worked the on-call shift), then Tilly’s paid her for the on-call shift. On the other hand, if Plaintiff was told that she did not need to work the on-call shift that day, she received no compensation whatsoever. Tilly’s disciplined employees if employees failed to contact their stores before their on-call shifts or if they contacted the stores late.

Given that California law requires employers to pay reporting time pay to employees who report to work, the issue in Ward v. Tilly’s, Inc. was whether, for purposes of reporting time pay, Plaintiff reported to work when she called in two hours before her on-call shift and was therefore entitled to reporting time pay. The Court of Appeal answered in the affirmative.

Among other things, the Court of Appeal pointed out that unpaid on-call shifts “are enormously beneficial to employers” in that they “create a large pool of contingent workers whom the employer can call on if a store’s foot traffic warrants it, or can tell not to come in if it does not, without any financial consequences to the employers.” (Id. at 1183.) On-call shifts allow employers “to keep their labor costs low when business is slow, while having workers at the ready when business picks up.” (Id.)

In contrast, “unpaid on-call shifts impose tremendous costs on employees.” (Id.) That is, because employees must be available to work on-call shifts, they “cannot commit to other jobs or schedule classes during those shifts;” they must make contingent childcare arrangements if they have children (which childcare they may have to pay for even if it turns out that they do not need to go to work that day); and they cannot commit to social plans because they will not know until two hours before an on-call shift’s start time whether they can keep those social plans. In sum, the Court of Appeal reasoned, “on-call shifts significantly limit employees’ ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.” (Id.)

The Court of Appeal also pointed out that “because employees must contact Tilly’s two hours before the start of on-call shifts, their activities are constrained not only during the on-call shift, but two hours before it as well.” (Id.) That is, at the time that employees call in two hours before their on-call shifts, “they cannot do things that are incompatible with making a phone call, such as sleeping, watching a movie, taking a class, or being in an area without cell phone service.” (Id.) In short, employees are significantly constrained in how they can use their time “both two hours before an on-call shift, when they must be available to contact Tilly’s, and during the on-call shift itself, when employees must be available to work.” (Id.) Click here to read the full Court of Appeal opinion.

If you believe that you are entitled to receive reporting time pay, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. We serve clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.

The information in this blog post is for general informational and advertising purposes only and is not, nor is it intended to be, legal advice. Instead, you should speak with a California employment attorney for advice regarding your individual situation.