‘Reporting’ to work since Ward v Tilly’s

A California Court of Appeal concluded last year that an employee does not need to physically show up to "report" to work and become entitled to reporting time pay. Rather, if the employee is required to call in two hours before a potential shift, that employee reports to work and is entitled to two to four hours of pay if not actually put to work or is furnished less than half the employee's usual or scheduled day's work.

The Ward v. Tilly's, Inc., 2019 DJDAR 1067, decision removed any physical reporting-to-work requirement from potential reporting time claims, concluding that "reporting to work" means "presenting oneself" for work as ordered. The court did not explain, however, what it means to "present oneself" for work. For example, what if an employee is required to call in three hours before a potential shift? What about five hours before? Or the day before? What if, rather than requiring an employee to call in, the employer notifies the employee that he or she may receive a call to come into work in the next two hours? A few courts have concluded that presenting oneself for work can be a situation less restrictive than that presented in Ward, but a year after Ward there is no further guidance from an appellate court or the Legislature.

Reporting Time Pay

In 1943, the Industrial Welfare Commission (IWC) developed a requirement for employers to provide an employee between two and four hours of pay if the employee reports to work, "but is not put to work or is furnished less than half said employee's usual or scheduled day's work." The reasoning was the perceived imbalance that employers were obtaining the benefit of a pool of workers at the ready in case workload justified it, but having the cost fall entirely on the workers if the workload did not.

The Ward Decision

As with many other areas of the law, technological advances have brought into question the meaning of a pre-information age employment law. Last year, a California Court of Appeal decided whether "reporting to work" as used in the Wage Orders meant physically showing up to work, or if it also included calling in to work.

The situation specifically presented was the employer's policy of scheduling employees for "regular" and "on-call" shifts. When an employee was scheduled for an "on-call" shift, she was required to call in two hours beforehand to determine whether she was needed to work. The employer paid the employee for an on-call shift only if she worked the shift.

The superior court dismissed the claim, concluding that reporting to work required an employee to physically appear at the workplace. The Court of Appeal disagreed. First, the court explained its interpretation was not limited by the technology at the time the reporting time rule was enacted. So instead of concluding that, because the IWC did not likely consider calling in to work as reporting to work due to the technological impracticalities of such a policy in 1943, the court instead considered how the IWC would have addressed the issue if presented with it. The court found the IWC was motivated by twin goals: compensating employees and encouraging proper notice and scheduling.

The court then concluded that interpreting "reporting to work" as including calling in, and not just physically reporting to the worksite, was consistent with these goals. The court analogized to practices the IWC sought to address when enacting the reporting time pay requirement: "Like requiring employees to come to a workplace at the start of a shift without a guarantee of work, unpaid on-call shifts are enormously beneficial to employers: 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 consequence to the employers. This permits employers to keep their labor costs low when business is slow, while having workers at the ready when business picks up. It thus creates no incentive for employers to competently anticipate their labor needs and to schedule accordingly."

The court further discussed how on-call shifts constrained employees from certain activities that are "incompatible with making a phone call," such as sleeping, watching a movie, taking a class or being in an area without cellphone service.

Ultimately, the court concluded that "report for work" means presenting oneself for work as ordered. The court provided little guidance on what it means to "present oneself" for work. The court noted that employers do not trigger reporting time pay requirements merely by expecting employees to apprise themselves of their schedules. But in response to an argument that the holding would create no limit to how far in advance of a shift an employee may report to work, the court responded that its holding was limited to the specific allegations of that case.

Cases Since Ward

Since the Ward decision, three courts, all federal, have been presented with on-call situations, and all have concluded the employees were reporting to work.

In a decision by the 9th U.S. Circuit Court of Appeals, the policy at issue was a requirement that employees call in 30 minutes to one hour before a scheduled shift. As this policy was more restrictive on the employee than the one at issue in Ward, the court followed Ward and concluded that the employees were reporting for work.

Two district court decisions have also concluded that on-call shifts can trigger reporting time pay, but have significantly expanded on the holding in Ward. Whereas in Ward and the 9th Circuit decision, the policies required the employee to call in, these decisions involved policies where the employee did not have to call in, but instead the employees were provided a window during which they might be called in to work. Arguably, by defining reporting for work as "presenting oneself," the Ward court anticipated an affirmative act by an employee. These decisions determined that any distinction between an affirmative act and a passive act by an employee was a distinction without a difference, concluding that the employees still had restrictions on their activities while waiting for a potential call.

It is key to keep in mind, however, that presenting oneself was the Ward court's interpretation of what it means to "report" for work -- the language used in the governing Wage Orders. Therefore, the result of these decisions is that employees are reporting for work when they have taken no affirmative act at all, a seemingly incompatible interpretation.

Remaining Questions

Without further input from appellate courts or the Legislature, it remains to be seen whether the distinction between active and passive conduct by an employee remains a distinction without a difference. Further, no court has yet determined a cutoff time: What if an employee must call in to work four hours before a potential shift, or 24 hours before a potential shift, or longer? This presents an environment of ambiguity for employers with significant potential liability risk.

A year after Ward, employment litigators have a new battleground of wage and hour litigation, but the confines of that ground remain to be seen. 