MAYRA Casas and Julio Fernandez worked as sales clerks for Victoria’s Secret in California. Victoria’s Secret required them to follow two shift schedules: 1) the traditional shift which required them to show up at the store at the scheduled time; 2) the Call-In shift, where they were required to first call their manager two hours before the shift to find out if they should come in to the store. If they were not needed that day, then they did not have to come in.
Calling in during the Call-In shifts was mandatory, and employees were disciplined if they did not call, or if they were late getting to the store after being told to come in, or if they did not come in at all. The employees claim that the call-in scheduling practice did not allow them to plan any other activities during that time, such as work at another job, attend classes, or make plans with friends and family.
The employees argued that there was no difference between the two scheduling practice. They still had to set aside the time to work, even if they were told not to work after all. Because of this, the employees claimed they should receive “reporting time” pay. The employees sued Victoria’s Secret in a class action, claiming that the company owed them and their fellow employees additional wages for its failure to pay reporting time on these “call-in” shifts.
Under California law, if an employee is required to report to work, but is not put to work, or does not work half of the employee’s scheduled day’s work, the employee is paid a half-shift reporting wage of at least two hours but not to exceed four hours. Generally, if an employee is required to show up a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay. These hours must be paid at the employee’s regular rate of pay, and in addition to the hours the employee actually worked. This is called “reporting time” or “show up” pay.
The employer’s legal obligation to pay reporting time pay stems from California’s objective to encourage employers to properly schedule employees, and not waste employee’s time with haphazard scheduling.
Some employers may find it convenient to schedule employees only when there is a need for them, thus, keeping employees “on-call” and scheduling them to work with maybe a few hours’ notice. If these employees set aside hours for work, but then were not put to work, should they be paid for showing up?
The case against Victoria’s Secret is certainly telling. Rather than proceed to trial, the parties agreed to settle the case, with Victoria’s Secret paying $12 million to settle the claims of its employees. The settlement will benefit approximately 40,000 former and current employees who had call-in shifts.
“On-call” scheduling may happen not only in the retail industry but other industries as well, where the demand for workers may fluctuate, such as in healthcare, manufacturing, hotels and restaurants, or sales. Employees who are “on-call,” on unpaid “stand-by” or “per diem,” who find their scheduled work canceled after they show up, and who do not get paid for the cancellation, would be smart to speak with a knowledgeable employment attorney to find out if they’re entitled to additional wages. n
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]
