Skip to content California Court of Appeal Expands Employers’ Obligation to Provide “Reporting Time Pay” for On-Call Shifts


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March 2019

California Court of Appeal Expands Employers’ Obligation to Provide “Reporting Time Pay” for On-Call Shifts

The California Court of Appeal decided for the first time in Ward v. Tilly’s, Inc. that employees obligated to call in for a shift to find out if they are actually working may be entitled to reporting time pay under Wage Order No. 7-2001. This new opinion significantly broadens the scope of California’s reporting time pay requirement.

Most California wage orders, including those governing the retail and restaurant industries, contain a provision requiring employers to pay employees reporting time pay for 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.” In such instance, the employee must “be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay.”

Under the policy at issue in Tilly’s, retail employees were required to call the store exactly two hours before the shift start time to find out whether they needed to work their on-call shift. Employees who failed to call in, called in late, or refused to work their on-call shifts were subject to formal discipline and could be terminated after three occurrences. 

Even though employees were not obligated to physically report to work, the Court of Appeal found that this practice triggered the employer’s obligation to provide “reporting time pay” because employees were unable to make other plans, attend school, or schedule other jobs for times they were on-call.

The Court of Appeals was not swayed by Tilly’s argument that historically, the wage orders’ “report for work” language had been interpreted to mean that the employee is required to physically show up to the work site. In fact, Tilly’s argued, when the wage orders were adopted in the 1940’s, reporting to work could really only mean physically reporting to work. The court rejected this interpretation as inconsistent with the spirit of the wage order, holding that “an employee need not necessarily physically appear at the workplace to ‘report for work.’ Instead, ‘report[ing] for work’ within the meaning of the wage order is best understood as presenting oneself as ordered.” 

Emphasizing the underlying pro-employee intentions of the wage order, and ensuring the risks of doing business lies squarely with the employer, the Court of Appeal held that “unpaid on-call shifts significantly limit employees’ ability to earn income, pursue an education, care for dependent family members and enjoy recreation time.”  Thus, because the employer required employees to block the time off and call in two hours before an on-call shift to find out if they will actually be working the shift, the Court of Appeal found the obligation to pay reporting time pay is triggered if they are told not to work the shift.  It is worth noting that the court clarified that the reporting time pay obligation is not triggered anytime an employee calls in or otherwise checks his or her schedule.

What This Means For Employers

While the Court of Appeal ruled on the meaning of Wage Order No. 7 relates specifically to the retail industries, most wage orders share the same language regarding reporting time pay, including Wage Order No. 5 (affecting food and beverage industries). Thus, we recommend that California employers either consult their employment attorneys or look closely at the wage order for their industry to confirm compliance. Employers with on-call or standby shifts should evaluate their policies and practices in light of this decision.  If employees are required to check in, whether by calling in, checking a schedule online, or sending a text message, the day of or the day before a scheduled shift, to see if they are actually working that shift, it could trigger the employer’s obligation to provide reporting time pay. 

Please contact Gordon Rees Scully Mansukhani Employment attorneys with questions regarding employers' obligation to provide "reporting time pay" for on-call shifts.

Employment Law

Debra Ellwood Meppen
Jennifer M. Rosen

Employment Law