was true even though the employees had to clear out their schedule, make themselves available for work, and could be disciplined if they refused to show when required to.

THE DISTRICT COURT DENIED JUDGMENT ON THE PLEADINGS

Zumiez moved in the trial court for judgment on the pleadings. Zumiez argued that the Wage Order’s use of the term “report for work” did not include telephonic reporting, but required a physical appearance. The district court rejected the argument, and denied the motion.

On Zumiez’ motion, the district court certified the question as to whether “report for work” required a physical appearance.

“REPORT FOR WORK” CAN INCLUDE TELEPHONIC REPORTING

Sitting in diversity, the Ninth Circuit applied California law. Looking to California Supreme Court precedent, the court found that the wage orders are to be interpreted “to favor the protection of employees.”

In this case, Wage Order 7 applied. That wage order required a half day’s pay (no less than 2 hours and no more than 4 hours) when an employee “is required to report to work and does report, but is not put to work” or works less than a half day.

During the pendency of the appeal, the California Appellate Court decided Ward v. Tilly’s, Inc., a case with facts substantially similar to this one. That case decided that telephonic call-in requirements could be sufficient to trigger the protections of the Wage Order. The California Supreme Court denied review.

Following the rule that, if the Supreme Court has not spoken it must follow a precedential lower court ruling unless there is “persuasive data” that the Supreme Court would rule otherwise, the Ninth Circuit followed Ward. That case found that “report for work” was an ambiguous term, with dictionary definitions of “report” allowing for different meanings.

Because reporting time pay can count as “hours worked” if the employee is subject to the employer’s control, the court also found factual issues as to whether Zumiez violated minimum wage laws.

CONCLUSION

Reporting time pay can be implicated when an employee is required to call in and be available for work, and, if subject to the employer’s control, can also implicate minimum wage laws.

COA 4^th Dist., Div. 1. Filed 4/21/20. Opinion by Justice Huffman

showed that about 20% of employers misclassified their workers as independent contractors on their tax returns, resulting in a loss of over $44 billion in federal tax revenue while the rest of us paid our fair share.

To no one’s surprise, big business sprang into action, seeking to repeal or weaken AB5. They worked on several fronts, but were met each time by organizations, like CELA, dedicated to the protection of workers’ rights.

Now big business has latched on to a new excuse to strip away AB5’s protections from California workers. With the global pandemic going on, they say, they can’t afford to pay their taxes or be held accountable for their wage theft violations. For example, Rep. Darrell Issa, former Republican Congressman and now candidate for Congress, has asked Governor Newsom to repeal AB5.

As Lorena Gonzalez, Democratic Assemblywoman who was one of the AB5’s authors, said, “It takes a special kind of politician to attempt to take away the new rights of countless workers to paid sick leave, unemployment insurance, and healthcare during a pandemic.”

It takes a lot of steps to arrive at the conclusion that AB5 should be repealed. The notion of forcing workers, especially low wage workers, to expose themselves to disease and illness by going back to work, while at the same time removing their employer provided healthcare required by AB5, reveals a distorted view of reality.

Every day, we read and hear the statistics of the novel Coronavirus-19 spreading, and doing so more now that states have begun prematurely allowing businesses to reopen. One would truly have to ignore the evidence of their own eyes and ears to conclude that this is the right time to remove the worker protections put in place by AB5.