‘On Call’ Workers Must Be Paid, Court Tells Clothing Retailer

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Denis ZilberbergFebruary 16, 2019Wage & Hour Law

The Second District Court of Appeals in Los Angeles dealt a blow on behalf of working Californians with its recent decision regarding the payment of employees waiting for on-call before a possible shift. In its 2-1 decision, the state appeals court ruled Monday that employees who are required to phone their employers two hours prior to a possible shift must be paid for the two hours they wait to find out if they will be needed. Apparently, the practice is widespread throughout the state, so this decision has a potentially broad impact on employees.

Tillys is an Irvine-based retailer. It requires its employees working on-call shifts to call in two hours prior to the beginning of the proposed shift start time to find out if they are needed or not. If the employee calls in late or does not call in at all, the employee faces a violation of company policy. After three violations, the employee may be terminated.

The court based its decision on a California Industrial Welfare Commission wage order from 1943 that’s still in effect. This order entitles employees to collect “reporting time pay” when they report to work.

The appeal comes from clothing retailer Tillys; the company argued that the law requires payment only for the time the employee reports to work at the actual workplace. Abercrombie & Fitch, the apparel chain, filed arguments supporting Tillys. However, the appellate court found that the law extends protection to employees who are forced to call their employer by phone, which represents a commitment of their time to the employer.

Presiding Justice Lee Edmon in the majority opinion stated that the employee who faces on-call shifts “cannot commit to other jobs or schedule classes during those shifts” and must have childcare arrangements in place and give up that time that could be spent for socializing or recreation. The Justice went on to add that these shifts are “enormously” beneficial to employers because it allows them to maintain a large number of contingent workers, paying them only if they end up needing them. The dissenting vote came from Justice Anne Egerton, who said that the purpose of the 1943 order was to ensure pay for employees who “physically appear at the workplace.”

The court says that requiring pay during the call-in window encourages employers to make accurate projections of their labour needs and schedule employees based on those projections. Employees making themselves available for work based on the employer’s needs must be compensated for their expense and their inconvenience, even if they are ultimately not called in to work that shift.

Employers do not always act in the best interest of their employees, and many see only their profit margins when establishing policies such as this “on-call” policy. If you have been the victim of unfair labour practices or wage and hour issues, call our office right away. Our wage and hour issues attorney can help you weigh your legal options.



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