Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) 73 Recently, the Ninth Circuit doubled down on the California Court of Appeal’s reasoning in Ward. Herrera v. Zumiez, Inc., considered a set of facts similar to those presented in Ward: retail employees were scheduled for call-in shifts that required them to contact their store to confirm whether they had to work their scheduled shift.427 The Ninth Circuit agreed with the reasoning in Ward and held that the requirement to call in ahead of the scheduled shift constituted “reporting for work,” which triggers reporting time pay.428 And the Herrera decision did not stop there, but went on to state that the plaintiff had properly pleaded her minimum wage claim for unpaid wages for the time employees spent calling in.429 Herrera also found that the plaintiff had failed to plead sufficient facts regarding her reimbursement of business expenses claim and remanded the issue to the district court to order amendment of the complaint to include more specific allegations such as whether the calls were made with employees’ personal phones or what costs were incurred in making the calls.430 While Herrera addresses only claims at the pleading stage, its reasoning would indicate that not only do call-in policies require employers to pay reporting time pay but that such policies could also require pay for time spent on the calls and the use of personal phones to do so. As such, California employers should consider the growing cost of call-in policies. XII. California Labor Code Private Attorneys General Act A. General Scope of the Law The California Private Attorneys General Act of 2004 empowers private individuals to seek penalties on a representative basis for alleged Labor Code violations affecting them and other aggrieved employees. PAGA both provides employees with added financial incentives to sue and creates new penalties for Labor Code violations. Previously, some Labor Code provisions carried no civil penalty at all, and many that did call for a penalty did not provide for a private right of action. Civil penalties generally could be obtained only if the DLSE brought an enforcement action against the employer. However, PAGA drastically altered Labor Code enforcement by creating (1) new civil penalties for every provision of the Labor Code that affects employees and that did not previously have a civil penalty431 and (2) a private right of action to recover civil penalties.432 Where no civil penalty amount is expressly set forth for a specific Labor Code violation, the default PAGA penalty is $100 for each aggrieved employee per pay period for an initial violation, and $200 for every further violation.433 427 Herrera v. Zumiez, Inc., 953 F.3d 1063, 1066 (9th Cir. 2020). 428 Id. at 1075. 429 Id. at 1077. Herrera noted that the plaintiff could defeat the employer’s motion for judgment on the pleadings by pleading facts to show employees (i) were subject to the employer’s control during the calls, (ii) were required to make these calls three to four times a week, (iii) spent 5-15 minutes on each call, and (iv) could be disciplined for not complying with the call-in shift policy. 430 Id. at 1078. 431 Lab. Code § 2699(f). 432 Lab. Code § 2699(a). 433 Lab. Code § 2699(f)(2). In Amaral v. Cintas Corp., 163 Cal. App. 4th 1157, 1209 (2008), the Court of Appeal held that an “initial” violation encompassed violations covering multiple employees for multiple pay periods, up until such time as “the employer has learned that its conduct violates the Labor Code,” at which point “the employer is on notice that any future
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