953 F.3d 1063
9th Cir.2020Background
- Herrera worked as a Zumiez sales associate (Aug 2014–Mar 2015) and was scheduled for two types of shifts: Show‑Up (physically report) and Call‑In (must be available and call manager 30–60 minutes before or contact manager at end of prior shift).
- Employees could be disciplined for not complying with Call‑In requirements, were restricted from scheduling other obligations during Call‑In windows, and were not paid if told not to come in; calls lasted ~5–15 minutes and occurred multiple times weekly.
- Herrera sued on behalf of a putative class for: failure to pay reporting time wages, unpaid minimum wages for call time, failure to indemnify phone expenses, and derivative record/wage‑statement, final pay, UCL, and PAGA claims.
- District court denied Zumiez’s Rule 12(c) motion as to all claims; Zumiez obtained interlocutory appeal on whether "report for work" requires physical presence.
- While the appeal was pending, the California Court of Appeal decided Ward v. Tilly’s (holding call‑in/on‑call requirements can trigger reporting time pay); the Ninth Circuit followed Ward and affirmed reporting time and wage claims, reversed indemnification claim for inadequate pleading, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "report for work" in Wage Order 7(5)(A) includes required telephonic Call‑In | Calling as required constitutes "reporting for work" and triggers reporting time pay | "Report for work" requires physical presence at the workplace | Followed Ward: required telephonic call‑in qualifies as "report for work"; reporting time pay claim survives (affirmed) |
| Whether time spent making Call‑In calls is compensable "hours worked" (minimum wage) | Calls are required, frequent, of measurable duration, and employees were subject to employer control -> compensable | Calls are not work but schedule checks; insufficient control to make them compensable | Fact‑dependent control inquiry: complaint alleged sufficient facts (required calls, discipline, duration, frequency) to survive judgment on pleadings (affirmed) |
| Whether Zumiez must indemnify employees for phone expenses (Cal. Lab. Code § 2802) | Mandatory Call‑In required use of personal phones, so employer must reimburse a reasonable portion | Plaintiff did not plead specifics about phone usage or actual expenses; claim speculative | Reversed: complaint lacked specific non‑conclusory facts about how calls were made or costs incurred; claim dismissed without prejudice to amend (reversed) |
| Whether derivative claims (recordkeeping, wage statements, final pay, UCL, PAGA) survive | Derivative on reporting time/minimum wage/indemnification | Derivative and rise/fall with primary claims | Affirmed to the extent they derive from surviving reporting time and minimum wage claims; tied to indemnification outcome on remand |
Key Cases Cited
- Ward v. Tilly’s, Inc., 243 Cal. Rptr. 3d 461 (Ct. App. 2019) (held reporting time pay applies to required call‑in/on‑call shifts)
- Morillion v. Royal Packing Co., 995 P.2d 139 (Cal. 2000) (established employer‑control test for compensable "hours worked")
- Troester v. Starbucks Corp., 421 P.3d 1114 (Cal. 2018) (wage orders construed to favor employees; rejected de minimis defense)
- Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823 (Cal. 2016) (restrictions on off‑duty time from employer devices undermine rest‑period protections)
- Murphy v. Kenneth Cole Prods., Inc., 155 P.3d 284 (Cal. 2007) (use plain meaning and IWC purpose in interpreting wage orders)
- Cochran v. Schwan’s Home Serv., Inc., 176 Cal. Rptr. 3d 407 (Ct. App. 2014) (mandatory use of personal cell phone for work requires employer reimbursement under § 2802)
- Brinker Rest. Corp. v. Superior Court, 273 P.3d 513 (Cal. 2012) (apply ordinary statutory‑interpretation rules to wage orders)
- West v. American Tel. & Tel. Co., 311 U.S. 223 (1940) (federal courts should follow intermediate state appellate decisions absent persuasive data to the contrary)
- Tomlin v. Boeing Co., 650 F.2d 1065 (9th Cir. 1981) (intermediate appellate state court decisions are controlling for the Ninth Circuit absent convincing evidence the state supreme court would rule differently)