206 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com The Court of Appeal has rejected a plaintiff’s claim that, as to a 45-second termination meeting he was summoned to attend, he should have received four hours of pay instead of the two hours of pay that he did receive. The Court of Appeal reasoned that on the day in question the plaintiff was scheduled for a meeting of unspecified length and so was not entitled to anything beyond the two-hour minimum.66 The Court of Appeal has also clarified that because reporting-time pay is due only when the employee has work for less than one-half the scheduled shift, an employer can schedule short meetings and pay for only the length of the meeting. The example the Court of Appeal gave was a meeting scheduled for one and one-half hours, but lasting only one hour. In that case, no reporting-pay would be due, the Court of Appeal said, because the employer furnished work for more than one-half the scheduled time.67 The traditional meaning of “report for work” is to show up at the workplace at the appointed time, ready to work. That certainly was the phrase’s meaning when the relevant Wage Order language was enacted, in 1947. But in 2019 an activist Court of Appeal decision held (at the pleadings stage) that employees potentially “report for work” if, while subject to an on-call schedule, they comply with an employer requirement to telephone two hours before the shift to see if work is available that day.68 The majority opinion—expressing solicitude for the plight of workers whose on-call schedules “significantly limit” their ability to “earn income, pursue an education, care for dependent family members, and enjoy recreation time”—held that employees potentially “report for work,” and thereby would be eligible for reporting pay if they then receive no work, simply by calling the employer to report their availability; they need not in these circumstances travel to the workplace to “report for work.” A well-reasoned dissenting opinion bemoaned this judicial activism: “[O]ur fundamental task in interpreting Wage Orders is ascertaining the drafters’ intent, not drawing up interpretations that promote the Court’s view of good policy. … It is our Legislature’s responsibility to enact any necessary legislation to address any hardship to employees who are required to call the employer to discover if they must report for work.”69 Note that this decision was procedurally in the context of reviewing a trial court’s order sustaining a demurrer to the reporting time pay claim at the pleadings stage. Although the appellate decision reversed and permitted this claim to clear a demurrer, it was not a ruling on the merits. On remand, the trial court later entered a ruling denying class certification based on the multiple individualized questions presented by the plaintiff’s theory of liability as to how a call-in shift amounted to “reporting” for work. The California Supreme Court did not accept review of the Court of Appeal’s decision reversing the demurrer and allowing the plaintiff’s claim to proceed. And then the Ninth Circuit, in a 2020 decision, similarly held that employees who must call in to check whether they will work a “call-in shift” are potentially entitled to reporting-time pay and are also potentially entitled to pay for the time of the call and to reimbursement of any personal phone expense incurred in the call.70 In subsequent 2020 cases, federal district courts have extended this rationale further in denying a motion to dismiss, finding that “‘report for work’ may include making oneself available to receive a call to report for duty” when subject to discipline from the employer.71 Split shifts. Some nonexempt employees have a work schedule interrupted by nonpaid, nonworking hours (other than meal breaks), with a designated beginning and quitting time. The DLSE opines that an interruption exceeding one hour may give rise to a split shift.72 Under the Wage Orders, California employers must pay splitshift employees “one hour’s pay at the minimum wage … in addition to the minimum wage for that workday.”73 The commonsensical interpretation of this Wage Order provision is that split-shift employees, if they get paid more than the minimum wage, are entitled to any difference between what they actually earned and what they would have earned had they received the minimum wage for their entire shift plus an extra hour.74 The Court of Appeal has adopted this interpretation, rejecting the plaintiff’s argument that a split-shift employee is automatically entitled to an extra hour of wages paid at the rate of the minimum wage.75
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