The Court of Appeal in California just published an opinion that threatens to change how employers structure on-call duties. Contradicting long-settled precedent that on-call time need not be paid unless an employee’s activities are unduly restricted, the Court in Ward v. Tilly’s, Inc. held that if an employer requires an on-call employee to check in by phone or text, such employee must be paid for at least half his or her regular hours at the regular rate of pay – even when no work is available. The Court determined that the requirement to check (even by phone or e-mail) is tantamount to physically showing up for work. As such, show-up pay under California’s Wage Orders is required.
Case Could Potentially Change All On-Call Arrangements in California
Until this decision, it was well settled that employers were not required to pay employees for on-call time unless the employer restricted his or her activities. The obligation to pay employees for “reporting” to work only applied where employees were actually required to show up for work on the employer’s premises. This decision will impact thousands of employers in California. It is unclear whether the decision will apply retroactively. The Court will decide that issue at a later date. However, the potential that it could apply retroactively will certainly trigger more litigation regarding on-call pay.
The Court recognized that its opinion is a game changer for employers who have a custom and practice of placing employees on call. However, it reasoned that California’s Wage Orders – which regulate pay for every industry and occupation – have long mandated that when an employee is required to report for work and does report, but is not put to work, the employer must pay for half the employee’s usual or scheduled work at the regular rate of pay. The Court said that in the era of electronic communications, the term “report to work” should not be limited to physical presence. Instead, the term should include any reporting directive by the employer.
The Court’s opinion was clearly based upon its view that remaining on call is a burden, regardless of the freedom to pursue individual pursuits. It held that, “On-call shifts take a toll on all employees, especially those in low wage sectors.” The Court further noted that on-call obligations interfere with not only personal time, but the ability to obtain supplemental employment.
On-Call Time Practices: What to Do?
The case may be appealed to the California Supreme Court. If it is accepted for review, it will no longer be considered a precedent. For now though, because it is a published decision, it governs situations in which employees are asked to call in or otherwise contact an employer at a certain time before a shift to determine whether they should come to work. All employers in California with on-call practices should review them for potential repercussions as a result of this decision.
