When “Reporting for Work” Means More Than Showing Up: California’s On-Call Scheduling Decision in Ward v. Tilly’s
For many employees, being “on call” does not feel like free time. The employee may not be at work yet, but the shift can still control the day. They may have to keep their phone nearby, avoid making other plans, arrange childcare, decline another shift somewhere else, or stay close enough to work to get there if called in.
That practical reality drove the decision in Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167, a California Court of Appeal case about whether a retail employer’s call-in scheduling practice triggered California reporting time pay.
The case asked a deceptively simple question: when a wage order says an employee must be paid if the employee is required to “report for work” but is not put to work, does “report” mean only physically appearing at the store? Or can it also mean calling the store at the employer’s direction to find out whether a scheduled on-call shift will actually happen?
The Court of Appeal answered that, under the facts alleged in the case, calling in could count as reporting for work.
The Scheduling Practice at Issue
Skylar Ward worked as a sales clerk at a Tilly’s store in Torrance, California. According to the complaint, Tilly’s scheduled employees for both regular shifts and “on-call” or “call-in” shifts. These on-call shifts had designated beginning and ending times, but employees did not know whether they would actually work them until shortly before the shift began. Employees had to contact the store approximately two hours before the scheduled start time to find out whether they were needed. Tilly’s allegedly told employees to treat the on-call shift as definite unless they were told they did not need to come in.
That meant the employee’s day was partly locked up before the employer decided whether the employee would be paid. If Tilly’s told the employee to come in, the employee worked and was paid. If Tilly’s told the employee not to come in, the employee received no compensation for having kept that time available.
The complaint alleged the policy came in several forms. Sometimes a regular shift was followed by an on-call shift, and the employee would learn during the regular shift whether the additional shift was required. Sometimes the on-call shift came before a regular shift. Sometimes the employee had only the on-call shift that day. In the latter two situations, the employee had to call in about two hours before the on-call shift, or at 9:00 p.m. the night before for early shifts, to determine whether the shift would happen.
The policy also had teeth. Employees allegedly could be disciplined if they failed to contact the store, contacted the store late, or refused to work an on-call shift when told to report. Discipline could include formal written reprimands and, after multiple violations, termination.
The Legal Claim
Ward filed a putative class action on behalf of non-exempt retail employees. She alleged the on-call scheduling practice violated Wage Order 7, which applies to the mercantile industry. Wage Order 7 requires reporting time pay when an employee is required to report for work and does report, but is not put to work or is furnished less than half of the employee’s usual or scheduled day’s work.
Tilly’s argued the rule did not apply because employees who called the store had not physically appeared at the workplace. In Tilly’s view, “report for work” meant showing up at the worksite at the start of a scheduled shift. A phone call to ask whether to come in was only a schedule check, not reporting for work.
Ward argued the wage order was not limited to physical presence. In her view, an employee “reports” when the employee presents herself in the manner the employer requires. If the employer requires employees to call in two hours before an on-call shift and disciplines them for failing to do so, that employer-directed call can be enough.
The Trial Court Dismissed the Case
The case did not reach trial before the appeal. Tilly’s challenged the complaint by demurrer, arguing Ward had not stated a valid legal claim. The trial court agreed with Tilly’s and sustained the demurrer without leave to amend.
The trial court concluded employees did not “report to work” merely by calling in to learn whether they would work a call-in shift. Because the reporting time pay claim failed, the court also dismissed Ward’s related claims. Ward appealed.
The Court of Appeal Looked Beyond the Old “Show-Up Pay” Model
The Court of Appeal reversed. It began with the text of Wage Order 7 and focused on the phrase “report for work.” The court recognized the phrase could support more than one reading. Some definitions of “report” suggest going to a particular place. Others focus on presenting oneself as ordered. Because the phrase was not clear enough to resolve the case by text alone, the court examined the wage order’s history and purpose.
Historically, reporting time pay was designed to address the unfairness of requiring workers to make themselves available for work without providing the expected work. In the older, classic example, an employee physically came to the workplace and was sent home because the employer had little or no work available. But the court did not freeze the wage order in the 1940s. It reasoned that wage orders can apply to modern workplace practices and technologies even if the drafters did not specifically anticipate them.
The court concluded that reporting time pay serves two related purposes: compensating employees for the inconvenience and loss associated with inadequate scheduling, and encouraging employers to provide proper notice and scheduling. On-call shifts, as alleged in the complaint, implicated both purposes.
Why the On-Call Policy Was a Problem
The court’s practical analysis is the most important part of Ward for employees and employers.
From the employer’s side, on-call scheduling gives a business flexibility. If customer traffic is heavy, the employer can call workers in. If business is slow, the employer can cancel the shift without paying for it.
From the employee’s side, the cost is different. The employee has held time open. The employee may be unable to take another job, attend class, make family plans, arrange childcare reliably, or use the time freely. The court explained that unpaid on-call shifts can significantly limit an employee’s ability to earn income, pursue education, care for family members, and enjoy personal time.
The court gave a concrete example. If an employee is scheduled for an on-call shift from 10:00 a.m. to noon, followed by a regular shift from noon to 4:00 p.m., and the employer tells the employee at 8:00 a.m. the on-call shift is not needed, the employee receives no pay for the on-call shift. But the employee still had to preserve that time and be available to contact the employer two hours before the shift. The court viewed that as an employer-imposed burden on the employee’s time.
The court therefore held the alleged call-in policy triggered reporting time pay. In the court’s words, “report for work” is best understood as presenting oneself as ordered. If the employer directs employees to physically appear at the workplace, physical appearance triggers the rule. If the employer directs employees to log in remotely, appear at a client site, start a trucking route, or call the store two hours before a shift, those employer-directed actions may also constitute reporting for work.
What Ward Did Not Decide
Ward is important, but it should not be overstated.
The court did not hold every phone call, text message, app notification, or schedule check creates reporting time pay. The opinion focused on the employer’s requirement that employees call in at a specific time before a scheduled on-call shift, with potential discipline for failing to do so. The court distinguished that from an employee merely checking a schedule.
The court also did not decide every possible line-drawing question about advance notice. Tilly’s argued the rule would be difficult to administer because the wage order did not specify how much advance notice is enough. The court acknowledged difficult questions could arise, but limited its decision to the specific practice alleged in the complaint.
That limitation is useful. Ward does not turn California reporting time pay into a broad predictive scheduling statute. It addresses a narrower question under the wage order: whether employer-required call-in reporting for an on-call shift can count as reporting for work.
The Dissent Saw the Issue Differently
Justice Egerton concurred in part and dissented in part. The dissent would have allowed Ward to proceed only on a narrower theory involving employees who physically reported to work for a regular shift, were scheduled for an add-on on-call shift, and were then sent home before the add-on shift without pay.
On the broader call-in issue, the dissent would have read “report for work” to require physical appearance at the workplace. The dissent emphasized the wage order’s history and argued any broader policy response to on-call scheduling should come from the Legislature rather than the courts.
That disagreement highlights why Ward is an important case. It was not a mechanical application of a simple rule. It required the court to decide how an older wage order applies to newer scheduling practices.
The Decision
The Court of Appeal reversed the judgment of dismissal and the order sustaining Tilly’s demurrer. The case was remanded for further proceedings. The court did not decide whether Ward would ultimately prove her claims. At the demurrer stage, the question was whether the complaint stated a legally viable claim. The Court of Appeal held it did.
The decision means employers cannot avoid reporting time pay obligations merely by replacing physical show-up requirements with employer-required call-in procedures. When the employer controls the manner of reporting and requires the employee to hold time available for a scheduled on-call shift, reporting time pay may be owed if the employee is not put to work or is furnished less than the required amount of work.
What Ward Means for Today’s Scheduling Practices
Ward remains significant because modern scheduling no longer happens only on a paper schedule posted in a breakroom. Employers use remote scheduling applications, texts, remote logins, dispatch systems, group chats, and call-in procedures. Those tools can improve communication, but, depending on their specific use, they can also shift scheduling uncertainty onto employees.
The practical lesson is straightforward. Employers should review any scheduling practice requiring employees to remain available for possible work without guaranteed work. Calling a shift “on-call,” “tentative,” “flex,” or “possible” will not control the legal analysis. What matters is what the employee is required to do, when the employee is required to do it, whether the employee is subject to discipline for noncompliance, and whether the employer ultimately furnishes enough work.
For employees, Ward recognizes a basic reality of hourly work: time held for an employer’s possible use is not always truly free. When the employer requires employees to present themselves for work in a specific way at a specific time, California’s reporting time pay rules may apply even if the employee never walks through the store door.
Ward v. Tilly’s, Inc. was filed on February 4, 2019, by the California Court of Appeal, Second Appellate District, Division Three, Case No. B280151. The Court of Appeal reversed the judgment of dismissal and order sustaining Tilly’s demurrer and remanded the case for further proceedings consistent with its opinion.