©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 205 the shift to see if work is available that day.69 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.”70 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.71 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.72 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.73 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.”74 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.75 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.76 7.3.4 Travel time Commuting. Under the FLSA, as amended by the Portal-to-Portal Act, employers need not pay for the time an employee spends traveling to and from work, so long as the travel itself is not integral to the work performed. In California it’s different: travel time is compensable if the employee is subject to the control of the employer, even if the employee is not working. Under this doctrine, even commuting time in California is compensable if the employer requires its employees to travel to work on its buses.77 The Ninth Circuit has highlighted the difference between federal and California law, with the Ninth Circuit holding that where employees were required to use company vehicles for commuting purposes, the commute was not compensable under the federal Employment Commuter Flexibility Act, but was compensable under California law, which requires that employees be paid for all time during which they are subject to the employer’s control.78 A Court of Appeal decision has recognized that, even in California, time spent traveling in an employer-provided vehicle, even one loaded with equipment and tools, is not compensable if using that vehicle is “optional and voluntary.”79 In a 2020 case, the Court of Appeal considered whether service technicians who repair copiers at customer sites were entitled to pay for their commuting time, because they used their personal vehicles to transport company tools and equipment to the customer work sites. The Court of Appeal reversed a summary judgment for the
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