Mayra Casas worked as a sales clerk for Victoria’s Secret in one of the company’s California stores. Casas claimed that she, and other employees, were required by the company to “call-in” two hours before their scheduled shift to see if work was available. If there was no work for them, they should not show up. If there was work, they need to show up on time. It was alleged that employees who were told to come in for work arrived at work only to be told that their “call-in” shifts were cancelled. They were then sent home without pay. At other times, the employees showed up to work but were only provided a shortened shift.
Additionally, employees who worked a closing shift routinely found themselves locked in the store at the end of the store hours and must wait for a manager to permit them to leave the store. Because this occurs after the employees have clocked out for the day, they are not paid for the time spent waiting for the manager to let them out.
Casas sued Victoria’s Secret in a class action, claiming that the company owed her and her follow employees additional wages for (1) failure to pay reporting time on regularly scheduled shifts; (2) failure to pay reporting time on “call-in” shifts; (3) failure to pay for all time worked; (4) failure to maintain required business records; (5) failure to provide accurate itemized wage statements; (6) unfair business practices; and (7) civil penalties under the private attorney general act. The case is asking for about $37 million dollars in unpaid compensation.
For the employees who showed up to work but had their shifts canceled or shortened, they will likely be entitled to back pay, and are scheduled to proceed to class certification. The outcome of the case is yet to be determined.
Employees who are “on the clock” know that the employer must pay for work performed during this time. However, there are situations where it is not quite clear whether a work-related activity performed by an employee outside the regular 8-hour framework would still be compensable.
The most important rule to remember is this: Time spent by an employee performing activities that are controlled by and for the benefit of the employer is considered “work time” and must be paid by the employer. These activities include “off-the-clock” time spent performing job-related activities which benefit the employer. If the employer knows (or should have known) that the employee is working, and allows the employee to do it, the employer will be responsible for paying for work time.
The following activities may also be considered “work time” and thus should be paid:
1) “Voluntary,” “unauthorized” or “unapproved” work or overtime work (provided the employer knows or should know it is being done and permits the employee to do it anyway)
2) Other “nonproductive” time such as time spent by a call center employee waiting for the phone to ring
3) Time spent preparing the equipment or tools required at work
4) Time spent performing work-related activities that the employer permits, whether on the employer’s premises or not, and whether “required” or not
5) Work done “at home” or at a place other than the normal work site
6) “On-call” time where the employee is not allowed to control and use the time for his or her own enjoyment or benefit.
7) Travel time that is part of the job, such as travel from job site to job site during the workday, or travel away from home when it cuts across the employee’s workday.
There may be other situations where “work time” applies. If an employee feels that some activities should be paid but are not, it would be wise for that employee to consult with a knowledgeable employment attorney.
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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. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.
