SAN FRANCISCO – A decision regarding whether waiting for a call to head into work is actually considered working has been bouncing around California courts.
Ultimately, though, it will be municipalities that will decide the issue, said Timothy Hoppe, an associate in the labor and employment department of Seyfarth Shaw LLP. Hoppe and Jeffrey Berman wrote a blog post last month on call practices by employers and reporting time.
“I think the real action is going to be at the legislative and municipal level,” Hoppe told the Northern California Record. “When one city passes it, other cities start to follow suit. We’ve seen it with minimum wage and some other regulations. I don’t know why this would be any different.”
On Oct. 5, a Ninth Circuit panel indicated that it might call on the California Supreme Court to answer whether calling in to work amounts to reporting for work under California’s Wage Order 7-2001, Hoppe and Berman wrote in the California peculiarities employment law blog.
Hoppe said that the case, Casas v. Victoria’s Secret Stores LLC, CV 14-6412 (C.D. Cal), was recently settled. It is under seal and will go back to district court for approval of the settlement, he said.
The wage order in question involves reporting time pay. According to California Wage Order 7-2001, section 5, 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 of said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two hours nor more than four hours, at the employee's regular rate of pay, which shall not be less than the minimum wage.
At issue is when an employer asks an employee to call in to see if he or she is needed to come in for a shift.
“It’s a pretty popular scheduling technique among retailers,” Hoppe said.
Plaintiffs argue that this required act of picking up the phone amounts to reporting for work under wage order 7’s reporting time pay provision, Hoppe and Berman wrote in the blog. To plaintiffs, this means that employers who fail to use call-in employees must pay reporting time pay.
“They’re trying to say someone who calls in … is reporting to work and I just think it’s not an accurate reading of the wage order,” Hoppe said. “Calling in is vastly different.”
The two speculated in the blog that the California Supreme Court may be approached for a final decision. San Francisco County's board of supervisors passed two ordinances in November 2014 that became operative in October 2015, according to the office of labor standards enforcement website, formula retail employee rights ordinances section.
It states that an employer shall provide an employee, who is required to be available but is not called in to work:
(1) Two hours of pay at the employee's regular hourly rate for each on-call shift of four hours or less; and
(2) Four hours of pay at the employee's regular hourly rate for each on-call shift of more than four hours.
This shall not apply when the employee is in fact called in for the on-call shift.