Herrera v. Zumiez, Inc.
2:16-cv-01802
E.D. Cal.Aug 16, 2017Background
- Plaintiff (Herrera) sued Zumiez on behalf of a putative class, alleging reporting-time pay violations under IWC Wage Order No. 7 (8 Cal. Code Regs. tit. 8, § 11070(5)(A)) and several derivative wage-and-hour and UCL/PAGA claims.
- Employer had a mandatory policy requiring employees to call (by phone) roughly 1 hour before a shift to learn whether they were scheduled; calls lasted ~5–10 minutes, occurred multiple times per week, and about half the time no work or pay was provided.
- Some class members lived up to an hour from the workplace; plaintiffs allege phone calls imposed time and cellphone costs.
- Zumiez moved for judgment on the pleadings arguing (inter alia) that the reporting-time rule requires physical presence, so telephonic ‘‘reporting’’ does not trigger pay; Zumiez also attacked derivative claims.
- The court treated the facts pleaded as true and considered whether the wage order’s phrase "report for work" requires physical attendance.
- The court denied the motion: it held telephonic reporting can trigger reporting-time pay and declined to dismiss the related and other wage claims at the pleadings stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "report for work" under the reporting-time wage order requires physical presence | Telephonic calls to confirm a shift constitute "reporting for work" and should trigger reporting-time pay | The wage order requires physical arrival at the workplace; telephone calls are insufficient | Court: "reporting for work" may be accomplished telephonically; denied dismissal of reporting-time claim |
| Whether time spent calling in is compensable minimum-wage time | Call-in time was required by employer policy and thus employees were under employer control and entitled to pay | Call-in time is outside employer control and may be de minimis (esp. calls ≲10 minutes) | Court: pleadings plausibly allege control; de minimis is fact-specific; denied dismissal (subject to change if law evolves) |
| Whether derivative claims (recordkeeping, wage statements, wage at termination, UCL, PAGA) survive | Derivative on viable reporting-time claim, so they survive | If reporting-time claim fails, derivative claims fail | Court: because reporting-time claim survives, derivative claims survive |
| Whether employer must reimburse cellphone expenses for call-ins under Cal. Lab. Code § 2802 | Calling in was required; costs were necessary and employer had constructive knowledge, so reimbursement owed | Use of cellphone was employee convenience; employer lacked actual knowledge so no reimbursement as a matter of law | Court: allegations suffice to plausibly show necessity and employer knowledge; denied dismissal |
Key Cases Cited
- Campbell v. PriceWaterhouseCoopers, LLP, 642 F.3d 820 (9th Cir.) (interpret wage orders like statutes)
- Day v. City of Fontana, 25 Cal.4th 268 (Cal. 2001) (statutory construction seeks drafter intent and purpose)
- Dyna-Med, Inc. v. Fair Employment & Housing Comm'n, 43 Cal.3d 1379 (Cal. 1987) (statutes construed reasonably and practically)
- Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (Cal. 2012) (plain meaning and liberal construction of wage laws to protect workers)
- Cash v. Winn, 205 Cal.App.4th 1285 (Cal. Ct. App.) (strong public policy favoring worker protection in wage-and-hour interpretation)
- Morillion v. Royal Packing Co., 22 Cal.4th 575 (Cal. 2000) (wages owed when employee is controlled or "suffered" to work)
- Lindow v. United States, 738 F.2d 1057 (9th Cir.) (de minimis doctrine in compensable time analysis)
- Rutti v. LoJack Corp., 596 F.3d 1046 (9th Cir.) (10-minute threshold referenced for de minimis wage claims)
- Burnside v. Kiewit Pacific Corp., 491 F.3d 1053 (9th Cir.) (private enforcement of IWC wage orders)
- Molski v. M.J. Cable, Inc., 481 F.3d 724 (9th Cir.) (plain statutory language ends inquiry)
- Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal.4th 554 (Cal. 2007) (§ 2802 "necessary" expense standard)
- Cochran v. Schwan's Home Serv., Inc., 228 Cal.App.4th 1137 (Cal. Ct. App.) (employee may seek reimbursement for required communication expenses)