Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 91 an integral and indispensable part of their principal duties, thus making the time compensable under the FLSA. The district court granted summary judgment for Connexx, holding that such time was non-compensable. In reversing the district court’s ruling, the Ninth Circuit held that the boot up process was “integral and indispensable to the employees' duties and is a principal activity under the FLSA”, and thus compensable time. In reaching this conclusion, the court noted that all of the job activities that the employees performed required the use of the computer, and therefore getting the computer ready to use was “integral and indispensable” to the employees’ job duties.453 While this was a blow to employers, particularly employers whose workforce relies heavily on computers, the Ninth Circuit did leave room for the district court to consider whether the de minimis doctrine applied to time spent booting up and down the computers, thus rendering the time non-compensable. G. 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.,454 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.”455 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.456 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.457 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.458 In 2020, 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.459 The 453 Id. at 839. 454 31 Cal. App. 5th 1167, 1185, review denied (May 15, 2019). 455 Id. 456 Id. 457 Id. at 1183-84. 458 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. 459 Herrera v. Zumiez, Inc., 953 F.3d 1063, 1066 (9th Cir. 2020).
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