What is considered “work time” that requires pay?  Well, that definition keeps on getting broader for California employers.

• Can you let individuals “volunteer” and provide comps/trade for their time?  No.
• Can you let non-exempt employees check emails at night or on weekends and assume that the time is so small it is not compensable?  No.
• Can you require a non-exempt employee to wait around at home and check in throughout the day to determine when/if needed at work (i.e. be engaged to wait)?  No.

And now per a new California Supreme Court case (Ward v. Tilly’s), can a California employer require an employee to call-in two hours before a shift, yet only pay that employee if actually required to come into work?  Also, no.

If you are a California based retailer, spa, salon, or restaurant that relies on an on-call system to adjust your California workforce based on last minute fluctuating operational needs, then think again.  Based on this ruling, your on-call policy is likely creating unnecessary risk.

The Court found that an on-call employee really isn’t free from work if required to call-in and then report in as needed.  In fact, such a call-in responsibility really requires that employee to keep the day free.  The employee can’t make plans, go to the beach or a movie, commit to another job, or secure child care.  And in the opinion of the Court, that isn’t particularly fair.

So what can you do if you are a California business that relies on an on-call workforce?

• You can still have on-call employees, you just can’t discipline them for not calling or not showing up when needed (not very helpful, I know); or
• You can still have on-call employees, but make the call-in time more than 2 hours before the shift (but note, with predictive scheduling laws in some cities, and more pending in the state legislature, how much on-call time is okay is still an open question); or
• Ask for volunteers for any last minute extra shifts; or
• Keep a list of employees who want extra shifts, and notify them when you need people last minute; or
• Post open shifts and invite employees to sign up for them (and you can even put limits on taking extra shifts if it triggers overtime); or
• Have employees show up, and if you don’t need them, send them home after 2-4 hours (but beware of strict reporting time pay requirements).

Was this case over-reaching by California courts?  According to the dissenting judge, this was an issue for the legislature, not the courts.  Maybe the legislature will take this issue up, or impose even more restrictions for on-call shifts with more predictive scheduling laws.  In the meantime, the lesson:  If you schedule on-call (especially in retail in California), beware.

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