Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 91 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.452 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.453 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.454 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.455 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.456 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. 452 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. 453 Herrera v. Zumiez, Inc., 953 F.3d 1063, 1066 (9th Cir. 2020). 454 Id. at 1075. 455 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. 456 Id. at 1078.
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