When a California employee is scheduled for an on-call shift and company policy requires her to call in two hours beforehand to see whether she must work that shift, is that employee "reporting for work" even if that employee is not ultimately called in to work? Yes, she is, a California Court of Appeal just concluded, and therefore she must be paid accordingly.

Under California wage orders, an employee who is required to "report for work" but is not put to work or is furnished with less than half of his or her usual or scheduled day's work must be paid for half the usual or scheduled day's work (in no event for less than two hours or more than four hours). In a newly decided case, the issue was whether an employee calling in two hours before her on-call shift to find out whether she was required to work that day was "reporting for work" even though she physically did not come to her place of work. In a 2-1 decision, the court concluded that she was "reporting for work." The court explained that such an interpretation was consistent with the purpose of California's reporting time pay requirement because the policy at issue "imposes tremendous costs on employees," such as preventing the employees from working other jobs, caring for children or elders, or making social plans.

One might read this and wonder, "So a two-hour call-in policy triggers reporting pay obligations, but what about requiring an employee to call in three hours before an on-call shift? Or five hours? Or 24 hours? Would such a policy still trigger a reporting pay obligation?" The court did not say. "[D]etermining how much advance notice is necessary to avoid a reporting time penalty [] may never be before a court for the simple reason that employers may not find four-hour, or eight-hour, or 24-hour call-in shifts economically desirable."

One might also ask whether this decision will be applied retroactively or only prospectively. The court declined to answer that question as well. The dissent, however, argued that the decision should be applied prospectively only.

California's Supreme Court may choose to answer these questions or overturn the decision entirely. As the decision had a lengthy dissent, there is a reasonable chance the California Supreme Court will review the case. Time will tell.

Bottom line: An employee does not need to physically come to the workplace in order to be eligible for reporting time pay.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.