Employees who are required to stay “on call” before the start of a possible work shift, phoning their
employer two hours before the shift to learn whether they are needed, are entitled to be paid for that
two hour period regardless of whether they’re called in to work.
In February 2019, the Second District Court of Appeal in Los Angeles said on-call employees are
protected by the Industrial Welfare Commission’s (IWC) wage orders, that entitle employees to
“reporting time pay” as soon as they are required to report to work.
The employer, Tilly’s, a clothing store in Torrance, California, argued that the law mandates payment
only for the hours an employee actually works. But the Court of Appeal said the law also protects
workers who are required to report by phone because they are committing their time to the employer.
The court went on to say that workers facing on call shifts, “cannot commit to other jobs or schedule
classes during those shifts,” must make child care arrangements and have to give up time from
recreation or socializing. By contrast, the court said, “unpaid on-call shifts are enormously beneficial to
employers,” who can maintain a “large pool of contingent workers” and pay them only if they need
them.
In this case, Tilly’s required their employees with on-call shifts to call two hours before the shift would
start and disciplined those workers who called in late or not at all by terminating them after three
violations. The court agreed with employees that when the IWC orders were written, employees
reported to work by showing up at the workplace. But the court said the law was not drafted narrowly
and must be interpreted in light of changing realities and technology. The court also held that
employers are requiring their employees to “report to work” when they mandate call-ins two hours
before the start of a possible work shift. Requiring pay during call-in time encourages employers “to
accurately project their labor needs and to schedule accordingly,” and to “partially compensate
employees for the inconvenience and expense associated with making themselves available to work on-
call shifts.”
This is a big victory for employees. Many retail stores and restaurants require their employees to be “on
call” and call their employers 1-2 hours before a scheduled shifts. If their supervisor tells them they
expect many reservations or customers, or someone has called in sick, the employee must show up at
work. If the store or restaurant is not expected to be busy or the manager overstaffed that day, the
worker is told they do not have to come in for their scheduled shift. It is expected that many employers
will be discouraged from this practice if they have to pay for the “on call” time.
By, Karen Carrera
(Parts of this article were adapted from an article that appeared in the San Francisco Chronicle on Feb.
5, 2019 by Bob Egelko.)