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Court Says Retail Workers Are Owed Pay for Being 'On Call'

A California appellate court has held that "on call" workers should be compensated in instances when they aren't ultimately forced to come in to work a shift.

The decision issued Monday by the Second District Court of Appeal in Los Angeles marks the first time a court has weighed in how the state's labor-friendly employee wage orders apply to the practice where workers are assigned on-call shifts but are not told until they call in just hours before they're set to begin whether they should actually report to work or not.

The ruling is a win for plaintiffs lawyers at McNicholas & McNicholas; Frank Sims & Stolper; and Bridgford, Gleason & Artinian who represent a proposed class of workers pursuing reporting time pay from the Irvine-based Tillys chain of retail stores.

"As we explain, on-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts—but who nonetheless receive no compensation from Tilly’s unless they ultimately are called in to work," wrote Presiding Justice Lee Smalley Edmon in Monday's divided panel opinion. "This is precisely the kind of abuse that reporting time pay was designed to discourage," wrote Edmon, referring to partial compensation employees receive for who report to work, but are deprived of hours.

Bridgford Gleason name partner Richard Bridgford called the opinion a "far-reaching decision and a great day for the wage earners."

"It's a move to level the playing field and acknowledge the realities of the digital age in which we live," Bridgford said. "It’s easier now for an employer to reach an employee—whether it be by email, cellphone. social media post of some type—and to tie up that wage earner's time in a way that prevents the wage earner from seeking other employment or enjoying their free time."

The lead plaintiffs in the case, former Tillys employee Skylar Ward, sued in 2015 claiming that the retailer's practice of having workers call in two hours prior to "on call" shifts violated California Wage Order 7-2001. The wage order requires employers to pay employees “reporting time pay” when “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.”

Tillys lawyers at O'Melveny & Myers convinced the trial court below to toss the complaint, arguing that "reporting for work" requires an employee to be physically present at the workplace at the start of a scheduled shift.

But in reviving the lawsuit Monday, the Second District majority concluded that a worker need not physically appear at the workplace, but only "present oneself as ordered."

In a partial dissent, Justice Anne Egerton wrote that "legislative history of the phrase 'report for work' reflects the drafters’ intent that―to qualify for reporting time pay―a retail salesperson must physically appear at the workplace: the store." Egerton wrote that it should be up to the legislature to extend "report for work" pay to "on call" workers, not the court.

O'Melveny's Adam Karr, who argued the case for Tillys at the Court of Appeal, passed along a statement from the company, which said that Tillys is reviewing the decision, "which was made in the context of a motion to dismiss before any factual discovery and when all of the plaintiffs’ allegations were presumed to be true."

"Tilly’s respectfully disagrees with the two of three judges who decided the appeal in favor of the plaintiffs," the company statement said. "Tilly’s is confident that its practices will be found fair and lawful, either upon further appellate review of this decision or by the trial court upon remand."

A team from Greenberg Traurig filed an amicus brief on behalf of Abercrombie & Fitch Stores Inc. backing Tillys on appeal.