92 Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) Seyfarth Shaw LLP | www.seyfarth.com 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.460 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.461 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.462 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. H. Reasonable Attorney’s Fees And Costs Must Be Awarded To A Prevailing Plaintiff In Unpaid Wage Cases In Gramajo v. Joe’s Pizza on Sunset, Inc., the California Court of Appeal addressed the issue of attorney's fees and costs under Labor Code Section 1194(a).463 Elinton Gramajo, a former pizza delivery driver, sued his employer for various Labor Code violations, including unpaid minimum and overtime wages. After a seven-day jury trial, he was awarded $7,659.63 in damages. Gramajo sought to recover $296,920 in attorney's fees and $26,932.84 in court costs. The trial court denied these requests entirely, citing over-litigation and the disproportionate nature of the fees relative to the damages awarded. The court also noted that Gramajo had filed the case as an unlimited civil matter, despite the relatively modest recovery. On appeal, the Court of Appeal reversed the trial court's decision, holding that under Labor Code Section 1194(a), a prevailing employee in a minimum or overtime wage claim is entitled to recover reasonable attorney's fees and costs. The appellate court found that the trial court erred in relying on Code of Civil Procedure Section 1033(a) to deny fees and costs entirely. The court emphasized that while trial courts have discretion to determine what constitutes reasonable fees and costs, they cannot deny them altogether to a prevailing plaintiff under Section 1194(a). The case was remanded for the trial court to assess and award reasonable attorney's fees and costs. This decision underscores the mandatory nature of fee and cost awards under Labor Code Section 1194(a) for prevailing employees in wage and hour disputes, focusing on the principle that the fees must be reasonable. Trial courts retain the authority to scrutinize fee and cost requests and to reduce them if they are found to be excessive or unjustified. 460 Id. at 1075. 461 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. 462 Id. at 1078. 463 Gramajo v. Joe’s Pizza on Sunset, Inc., 100 Cal. App. 5th 1094 (2024).
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