"On Call" Employees Must Be Paid For Calling In To See If They Are Required To Work

In February 2019, the California Court of Appeals held that an employer must compensate employees a minimum of two hours of pay if they are required to call in to work prior to their shift to see if they are scheduled to work that day.

In Ward v. Tilly's Inc., the employee was required to call in before the start of her scheduled shift to find out if she had to work that day. These on-call shifts came in various forms, including an "on-call" shift after an employee's regular shift, before an employee's regular shift, or an on-call shift on days when they were not regularly scheduled to work. If an employee was told to come in, she was paid for the shift she worked, but if not, then she was not paid. This practice is common for businesses, especially retail businesses, where schedules often fluctuate and employees may not be needed for an entire shift.

A class action lawsuit was filed against Tilly's, a clothing store based in Irvine, California, claiming that Tilly's was required to compensate employees for the time they spent calling in to check if they would be working an on-call shift that day. Tilly's did not compensate employees for this time, but only paid them for shifts they actually showed up to work.

The employee argued that pursuant to Wage Order No. 7, which requires retail employers to pay retail employees "half the usual or scheduled day's work" with a minimum of two hours pay each time they report to work, applied and required Tilly's to pay employees at least two hours pay for calling in to see if they had to work that day. Tilly's argued that since the employee was not reporting to work, but merely calling in to see if they needed to report to work, the employee did not need to be compensated for that time.

The Court of Appeals sided with the employee and allowed the class action case to go forward. The Court held that it was not necessary for an employee to be physically present in the workplace for the Wage Order to be triggered, and since employees had to plan their days around a potential shift, they were required to be compensated for that time - for a minimum of 2 hours at their regular pay. The policy behind the Wage Order, which encouraged more definitive scheduling and shifts and was enacted at a time when workers would show up to work not knowing if they had a guaranteed shift, applied in this situation because the employees were required to be available to work their on-call shift if they were scheduled.

The Ward v. Tilly's case continues, but all employers should take note of the Court's ruling. Failure to compensate on-call employees for this time can lead to disastrous penalties for an employer. All retail employers should take note of this new California case and make sure that on-call employees are compensated at least two hours any time they must call in to find out if they have a scheduled shift.

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