On February 4, 2019, the Court of
Appeals for California’s Second District ruled in favor
of retail employees in an important decision about on-call work time
in Ward v. Tilly’s, Inc., Case No.
B280151. This decision is a major victory for on-call employees who have to set
aside time for shifts they might not get to work. You can find the opinion here.
The employer, Tilly’s, a clothing
and accessories retailer, required their employees to call two hours ahead of some
shifts to find out if they were actually needed. These on-call shifts had
concrete start and end times, and Tilly’s instructed its employees to plan as
if they were definitely going to work the shifts. Some on-call shifts were scheduled
immediately after an employee’s regular shift, in which case the employee would
learn whether she was needed during her regular shift. Although Tilly’s could
reprimand or even fire employees for failing to call in before their on-call
shifts, they were not paid for any on-call shifts they did not work, nor were
they paid for the two hours between calling in and the start of the on-call shift.
A scheduling scheme like Tilly’s puts
workers, especially
low-wage workers, in a tough
spot. An employee scheduled for a potential shift has to plan her
day as if she will work the shift, despite not having the guarantee of
compensation. This stressful
arrangement means setting up child care or care for aging relatives,
pursuing additional employment, rearranging health care appointments and education
schedules, or foregoing sleep, personal hygiene, or leisure, even
though an employee may not know whether she will be called in to work until
just two hours before her potential shift. In essence, Tilly’s required their
employees to block out their time for work without the assurance of being paid.
The plaintiff filed a putative
class action suit against Tilly’s, challenging this scheduling practice. Tilly’s
argued that the lawsuit did not state a cause of action—that everything the
employee said Tilly’s did, in Tilly’s view, was legal. The Superior Court in
Los Angeles agreed and threw out the case.
The Court of Appeals reversed,
ruling that Tilly’s on-call scheduling scheme violated the law, specifically Wage
Order 7 (Spanish) (Chinese).
The Industrial Welfare Commission has issued 17 Wage Orders,
including Wage Order 7, to regulate wages and work conditions for California
workers. Wage Order 7 requires employers to pay employees for “[e]ach workday
an employee is required to report for work, but is not put to work . . . .” Wage
Order 7-2001 (8 Cal. Code Regs § 11070). Tilly’s argued that the phrase “report
to work” requires an employee’s physical presence at the workplace when a shift
starts.
Not so, said the Court of
Appeals. The Court of Appeals drew attention to the unbalanced burdens that
Tilly’s on-call scheduling scheme placed
on its workers. The scheme benefited Tilly’s immensely: “This
permits employers to keep their labors 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.” Ward, Case No. B280151, at *22. In contrast,
the scheme “impose[d] tremendous costs on employees. . . . [O]n-call shifts
significantly limit employees’ ability to earn income, pursue an education,
care for dependent family members, and enjoy recreation time.” Id. at *22. These burdens affect
employees not just during their on-call potential shifts, but for the two hours
between the phone call and the shift itself. Id. at 22-23. The Court of Appeals held that Wage Order 7 was
designed to prevent unfair scheduling practices such as this, and determined
that the phrase “report for work” included the act of calling in. Id. at 23, 25. The wage orders covering workers
in other industries use the phrase “report to work” in the same way as Wage
Order 7.
In conclusion, the Court of
Appeals pronounced that “if the employer directs employees to present
themselves for work by logging on to a computer remotely, or by appearing at a
client’s job site, or by setting out on a trucking route, then the employee ‘reports
for work’ by doing those things. And if . . . the employer directs employees to
present themselves for work by telephoning the store two hours prior to the
start of a shift, then the reporting time requirement is triggered by the
telephonic contact.” Id. at 25-26. This
conclusion is similar to a California Supreme Court decision that an employer
cannot require its employees to keep their pagers and phones on to remain
on-call during their rest breaks, which Bryan
Schwartz has blogged about before. See Augustus v. ABM Sec. Servs., Inc., 2 Cal.5th 257, 269 (2017).
No comments:
Post a Comment