By Anthony Zaller on August 18, 2023
POSTED IN BEST PRACTICES FOR CALIFORNIA EMPLOYERS
Are there are any “predictive scheduling” requirements under California law? Can California employers change schedules for employees without notice? These are some of the questions I’ve dealt with lately about scheduling requirements in California. This Friday’s Five reviews five issues California employers should understand about regulations pertaining to setting and changing schedules under California law:
1. There are no predictive scheduling requirements statewide in California
While not a requirement across California, other states and local cities within California have passed scheduling mandates that require employers to set schedules for employees well in advance, and if the employer changes the schedules within a certain time frame the employer must pay a penalty for the change. See our prior post about Los Angeles’ Fair Work Week Ordinance that requires predictive scheduling for certain retail employers in the City of Los Angeles.
There has been proposed legislation on a state-wide basis for predictive scheduling, but as of 2023, none of these bills have passed. For example, in 2016, California’s legislature drafted SB 878 that proposed to require retail establishments, grocery stores, and restaurants to set employees schedules 28 days in advance, and impose penalties on the employer if the schedule is modified by the employer. This law, and others proposed since 2016 have not become law. Nearly every year the California legislature debates some type of predictive scheduling requirement. With that said, California law still sets certain limits regarding scheduling employees as explained below.
2. Reporting time pay
California law requires an employer to pay “reporting time pay” under the applicable Wage Order. This requires that when an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which cannot not be less than the minimum wage.
In addition, if an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.
Employers must remember, when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.
3. Reporting time pay: meetings and calls into work
There has been significant litigation over reporting time pay that is owed when employees are called in for meetings. If an employee is called in on a day in which he is not scheduled, the employee is entitled to at least two hours of pay, and potentially up to four hours if the employee normally works 8 hours or more per day. See Price v. Starbucks.
However, if the employer schedules the employee to come into work for two hours or less, and the employee works at least one half of the scheduled shift, the employer is only required to pay for the actual time worked and no reporting time is owed. See my prior post on Aleman v. AirTouch for a more detailed discussion.
The court in Ward v. Tilly’s, Inc. was presented the issue of what does “report for work” mean? The phrase is used in Wage Order 7 to trigger reporting time pay obligations, and is not defined in the Wage Orders. In Ward, the plaintiff was required to contact the employer two hours before the start of her on-call shifts to determine if she was required to come into work for that shift. Plaintiff argued that being required to call her employer two hours before a potential shift to see if she was required to work that day should be considered reporting to work, which triggers the employer’s obligation to pay reporting time pay. Given these facts, the court agreed with the employee, and held that requiring employees to call into work two hours prior to their scheduled shift to see if they were needed at work trigger reporting time pay.
4. Split Shifts
A split shift is defined in the California IWC Wage Orders as:
…a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.
See Cal. Code Regs., tit. 8, § 11040, subd. 2(Q). If the employee works two shifts separated by more than a rest or meal period, they are entitled to receive one hour’s of pay at state minimum wage, or the local minimum wage if it is higher, in addition to the minimum wage for that work day. See Cal. Code Regs., tit. 8, §11040, subd. 4(C). Any additional amounts over minimum wage paid to the employee can be used to offset the split shift pay due to an employee. For example, say an employee earns $10 per hour. She works 10:00 a.m. to 1:00 p.m., and then again from 3:00 p.m. to 8:00 p.m. This is a total of eight hours worked for the day, and she is entitled to a split shift payment of one hour of pay at the minimum wage rate. Assume, for this example, that the applicable minimum wage is $8 per hour. Therefore, because the employee earned $16 over minimum wage ($2 above minimum wage x 8 hours = $16) for the eight hours of work, this amount can be used to offset the amount owed for the split shift pay. As a result, there is nothing owed to the employee in this example.
5. On-Call Pay
If the employee is under the control of the employer, even if the employees are traveling to a work site or even sleeping, the employer may have to pay them for being on-call. For example, the California Supreme Court held that security guards who were required to reside in a trailer provided by the employer at construction worksites would still need to be paid for the time they slept while on-call. In that case, during weekdays the guards were on patrol for eight hours, on call for eight hours, and off duty for eight hours. On weekends, the guards were on patrol for 16 hours and on call for eight hours. The Court held that the employer was not permitted to exclude the time guards spent sleeping from the compensable hours worked in 24-hour shifts. See Mendiola v. CPS Security Solutions, Inc.
Likewise, in Morillion v. Royal Packing Co., the California Supreme Court held that, “we conclude the time agricultural employees are required to spend traveling on their employer’s buses is compensable under Wage Order No. 14-80 because they are ‘subject to the control of an employer’ and do not also have to be ‘suffered or permitted to work’ during this travel period.” Generally, travel time is considered compensable work hours where the employer requires its employees to meet at a designated place and use the employer’s designated transportation to and from the work site.