31 Cal. App. 5th 1167
Cal. Ct. App. 5th2019Background
- Plaintiff Skylar Ward, a former Tilly's sales clerk, sued as a putative class alleging Tilly's on-call scheduling required employees to call the store two hours before an on-call shift to learn whether to come in; if not called in, employees received no pay for that on-call shift.
- Tilly's disciplined employees for failing or being late to call in and did not count unworked on-call shifts as part of the scheduled day or as "reporting for work."
- Ward alleged violation of Wage Order No. 7 (Cal. Code Regs., tit. 8, § 11070) reporting-time pay provision and related Labor Code and UCL claims; the trial court sustained a demurrer without leave to amend and dismissed.
- The core statutory phrase in dispute was "report for work" in the reporting-time pay provision: whether telephonic call-in at employer direction qualifies as "reporting."
- The Court of Appeal reversed, holding that "report for work" is defined by the manner the employer directs an employee to present themselves (including telephonic call-in), so alleged on-call phone-in practices can trigger reporting-time pay.
- Court grounded its interpretation in wage-order purpose and history (compensating employees and encouraging proper notice/scheduling), statutory construction principles, and precedent emphasizing protective construction of wage orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "report for work" in Wage Order 7 requires physical presence at workplace | Ward: Any employer-directed manner of presenting oneself (in person, by phone, remotely) satisfies "report for work"; calling in at employer's direction triggers reporting pay if not worked | Tilly's: "Report for work" means physically appearing at the worksite at the shift start; telephonic call-ins do not qualify | Court: "Report for work" is defined by the manner the employer directs; employer-directed call-in can constitute reporting and thus can trigger reporting-time pay |
| Whether on-call scheduling (two-hour call-in) is consistent with IWC purpose for reporting-time pay | Ward: On-call burdens employees (limits other work, caretaking, schooling) and imposes uncompensated constraints—precisely the abuse reporting-time pay targets | Tilly's: Reporting pay was meant to compensate travel/loss time from physically showing up; paying for phone call-in would be inconsistent and unworkable | Court: Historical purpose includes both compensation and encouraging proper scheduling; on-call practices align with abuses reporting pay was meant to remedy |
| Foreseeable policy/administrability problems (e.g., absenteeism, how far in advance) | Ward: Limited to employer-directed reporting; practical line-drawing is manageable and unnecessary to resolve now | Tilly's: Leads to absurd results (paying no-shows, unlimited lookback) and unworkable standards for notice windows | Court: Rejected these as overstated; statutory text requires that employee "does report" and practical issues do not defeat applicability to the alleged two-hour call-in practice |
| Applicability of related Supreme Court on-call authority | Ward: Augustus supports evaluating whether employer control negates off-duty status | Tilly's: Distinguish Augustus (rest breaks context) | Court: Augustus is consistent—if employer control limits off-duty freedom, similar protective logic supports reporting-pay coverage for on-call regimes |
Key Cases Cited
- Augustus v. ABM Sec. Servs., Inc., 2 Cal.5th 257 (Cal. 2016) (on-call control undermines duty-free rest periods; protective construction of wage orders)
- Apple Inc. v. Superior Court, 56 Cal.4th 128 (Cal. 2013) (apply statutory purpose to new technology/practices when construing preexisting text)
- Martinez v. Combs, 49 Cal.4th 35 (Cal. 2010) (wage orders issued by IWC have force of law and are construed like statutes)
- Brinker Rest. Corp. v. Superior Court, 53 Cal.4th 1004 (Cal. 2012) (rules of construction for wage orders; deference to protective purpose)
- Peabody v. Time Warner Cable, Inc., 59 Cal.4th 662 (Cal. 2014) (DLSE interpretations considered but not binding; court must independently decide correctness)
- Morillion v. Royal Packing Co., 22 Cal.4th 575 (Cal. 2000) (DLSE guidance persuasive; statutory/regulatory interpretation principles for wage/hour matters)