Law Review: Employers must pay for call-in shifts
Do you know what a “call-in” shift is? That’s were an employee is required to call-in just before his or her shift begins to see if they are required to report for work.
If the employee is told to come to work, they do, if not, they don’t.
The question in today’s case is whether the employer is obligated to pay for that “reporting time.”
IS WORK AVAILABLE?
Zumiez, an Everett action-sports retailer, requires employees to call-in before their shift begins to see if work is available. If work is available, the employee shows up, if not, they don’t. It’s that simple. What’s not so simple is whether Zumiez is required to pay for the call-in employee’s time.
Alexia Herrera worked for a Zumiez retail store in Chico. Herrera and other employees were required to call their manager between 30 minutes to 1 hour before their call-in shift started to see if there was work.
Herrera complained that she was not paid, so her lawyers filed a class action lawsuit against Zumiez seeking to be paid for the 30 minutes or so involved in making the call.
REPORTING TIME PAY
California’s Wage Order 7, which applies in the mercantile industry, reads in part: “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, the employee shall be paid for half the usual or scheduled day’s work … in an amount no less than two hours’ wages and no more than four hours’ wages.
Wage Order 7 comes into play if the employee actually reports for work. Does the order apply to call-in shifts when employees call-in to see if work is available?
The Ninth Circuit Court of Appeals analyzed California’s Wage Order 7 noting that whether reporting for work or calling in to see if work is available burdens employees who cannot take other jobs, go to school, or make social plans (unless you are under a stay-at-home order with nothing to do) during call-in shifts — but who nonetheless receive no compensation unless they ultimately are called in to work.
The Court of Appeals wrote that not being paid for call-in shifts was the kind of abuse that reporting time pay was designed to discourage.
The phrase “report for work” became the focal point for this opinion. Zumiez argued that you can only report for work in person. So, no pay is due for merely calling for the “call-in shift.”
The Court of Appeals ultimately concluded that making retail employees call-in before a scheduled shift constitutes “reporting for work.” The employee made herself available and if not permitted to work, should be paid “reporting time pay” and the employee should be reimbursed for phone expenses incurred in calling Zumiez before call-in shifts.
I predict many mercantile retail businesses will be modifying those call-in policies.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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