Monday, February 04, 2019

Ward v. Tilly's (Cal. Ct. App. - Feb. 4, 2019)

Today's opinion matters a lot.  At least for a variety of low-paid workers, and perhaps for others as well.

The Court of Appeal reverses the trial court and revives a putative class action alleging that an employer (here, Tilly's) has to pay its employees wages when it tells them that they have to call in two hours before work starts to see if they're working that day.  Calling in counts as "reporting" for work.  At least according to the majority.  (The dissent, and at least one federal district court, says that the employee is not entitled to be paid unless she personally shows up for work during that two hour "call in" period.)

I must say that the majority opinion is at least persuasive on one point:  It's a total crock that the employer pays you nothing if you call in and they tell you you're not working that day.  The employer disrupted your life.  You couldn't make alternative plans that day since you potentially had to work (under penalty of being fired if you didn't show up).  You might have had to pay for child care or the like.  There's a reason for a minimum wage etc.  You shouldn't be paid nothing for the fact that your employer obligates you to arrange your schedule and potentially work on a given day, with only two hour's notice.

On the other hand, there's a line-drawing problem.  Do you really deserve to be paid for a whole day (or half day, or whatever) for a day you had to call in but didn't actually have to work?  What's the appropriate amount?  An hour?  Tough call.  Plus, there's no law that tells your employer how much in advance they have to tell you you've got a shift.  At least of which I'm aware.  Say your employer tells you a week in advance that you've got to work Thursday and Friday of next week.  I would think that's enough notice to not get you paid for, say, not working on Wednesday.

But what if they tell you your shift on Friday's; say, you often work Mondays, but on the Friday before, they say, nope, it's Tuesday next week?  Enough notice?  What if they tell you Friday that even though you normally work Saturdays, you're off this Saturday?  Is that enough?

Seems to me there should be a rule here.  And rules are generally made by the Legislature; courts have a tough time creating them.  (There's a proposed bill in the Legislature to accomplish something along these lines, but it's unclear whether it'll pass, and it probably would not resolve the exact issue raised by the present case anyway.)

Still, I'm not happy with a rule that says employers can make you arrange your schedule so you're available for nothing but work all day and then pay you nothing if it turns out two hours earlier they don't need you. Seems like that in fact might/should violate the relevant rules (e.g., Wage Orders).

So this putative class action survives for now.