72 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com The California Supreme Court’s Troester decision was issued while the plaintiff’s appeal in Rodriguez was pending. Ultimately, the Ninth Circuit reversed the district court’s grant of summary judgment in favor of Nike.419 In doing so, the Ninth Circuit rejected Nike’s argument that as 69% of inspections took less than 15 seconds, and only 3.3% of exit inspections lasted more than a minute, the time employees spent being inspected was de minimis.420 Instead, the Ninth Circuit focused on the frequency of the exit inspections, rather than their length, noting the inspections were not “so irregular that it is unreasonable to expect the time to be recorded.”421 While the de minimis doctrine is not dead in California, its applicability has been substantially limited. In contrast to the doctrine applicable to FLSA claims, the Ninth Circuit has appeared to switch the focus from the amount of uncompensated time to the frequency an employee experiences uncompensated time, regardless of how brief that time may be. As a result, any activities performed regularly, such as security checks or close-down procedures, will likely be subject to class claims if those activities are unpaid. F. Compensability of Call-In Time for Standby Shifts Historically, employers’ general understanding of “reporting time pay” was that it is limited to situations where the employee physically comes in to work, but is sent home early. Upending this general belief, the Court of Appeal in Ward v Tilly’s, Inc.,422 in 2019 held that “an employee need not necessarily physically appear at the workplace to ‘report for work.’” Instead, an employee “reports for work” when the employee presents him or herself “as ordered.”423 In Ward, the Court of Appeal found that employees “reported for work” when they called in two hours before a tentatively scheduled shift to find out if Tilly’s wanted them to come in to the workplace.424 Ward cited notions of public policy to support its decision, stating: Reporting time pay requires employers to internalize some costs of overscheduling, thus encouraging employers to accurately project their labor needs and to schedule accordingly. Reporting time pay also partially compensates employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite. Finally, reporting time pay makes employee income more predictable, by guaranteeing employees a portion of the wages they would earn if they were permitted to work the on-call shifts.425 Thus, under Ward, employees “report for work” if, while subject to an on-call schedule, they comply with the employer’s requirement to call before the shift to see if they must actually go in to work.426 419 Rodriguez v. Nike, 928 F.3d 810 (9th Cir. 2019). 420 Id. at 817. 421 Id. at 818. 422 31 Cal. App. 5th 1167, 1185, review denied (May 15, 2019). 423 Id. 424 Id. 425 Id. at 1183-84. 426 Ward also stated “if the employer directs employees to present themselves for work by logging on to a computer remotely, or by appearing at a client’s job site, or by setting out on a trucking route, then the employee ‘reports for work’ by doing those things.” Id. at 1185.
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