Recent Employment Law Decisions

California Courts of Appeal

Employees who must make themselves available for work for “call-in” shifts must be paid reporting time pay, even if they are not required to physically show up at the worksite

TILKEY v. ALLSTATE INSURANCE CO.

PLAINTIFF AND THE PUTATIVE CLASS WERE REQUIRED TO MAKE THEMSELVES AVAILABLE FOR “CALL-IN” SHIFTS

In addition to their scheduled shifts, employees at Zumiez were often scheduled for “call in” shifts. This meant that they had to call in to their supervisor prior to the shift to see if they needed to work that shift. If they had worked the previous shift, they had to check with their supervisor before leaving. In either case, the employee had to make themselves available to work “call in” shifts.

ZUMIEZ DID NOT PAY IF THE EMPLOYEE DID NOT WORK

If the supervisor decided that the employee was not needed to work, then the employee received no pay for the call in shift. This

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

Read More

Read All Decisions

Letter from the Editor
By Craig T. Byrnes, Esq., CELA Bulletin Editor

The Most Essential Command: Employers Urge the Removal of Worker Protections During a National Pandemic

“The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”

1984, George Orwell

Craig Byrnes

With the advent of AB5 at the beginning of the year, a strict test for who is an employee and who is an independent contractor was put in place. Employers who routinely hired workers as independent contractors for no other reason than they wanted to save money were put on notice: this type of tax-dodging, wage theft-enabling behavior was coming to an end.

AB5 was a godsend to workers across the State. Prior to its passage, workers were consistently misclassified as independent contractors; some estimates say that as many as 1.5 million workers missed out on minimum wage protection, overtime, disability, workers compensation and unemployment insurance, meal and rest breaks, and the myriad other protections afforded employees in California. An IRS audit

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.

Read More

Read Full Article