If your employer requires you to be on call for work, you must be paid, even if you don’t end up actually working, according to a California appellate court.

This can be a confusing gray area for employees, but the court made it crystal clear: Requiring employees to be on call but not paying them anything if they don’t work is “abuse,” according to a 2019 ruling. These flexible scheduling practices could apply to many industries — particularly consumer-facing roles such as sales staff, retail workers or restaurant servers.

Here’s how the issue ended up in court:

Skylar Ward worked as a sales clerk for Tilly’s, a clothing and footwear retailer based in Irvine. The company runs 229 stores; Ward worked in the Torrance, Calif., location.

As a regular practice, employees’ schedules included both regular and on-call/call-in shifts. For the latter, employees had to contact their stores two hours before their on-call shifts were to begin to find out whether the store needed them to work.

Tilly’s told its workers to consider the shifts as definite until they were told otherwise. Employees faced disciplinary action if they failed to report, reported late or refused to work an on-call shift. They could even be fired if they had three violations.

However, employees didn’t receive any pay unless they actually worked. Tilly’s argued that calling in to ask whether to report for work did not equate to physically reporting for work under the law.

The appellate court disagreed.

“On-call shifts burden employees, who cannot take other jobs, go to school, or make social plans during on-call shifts — but who nonetheless receive no compensation from Tilly’s unless they ultimately are called in to work,” the court said. “This is precisely the kind of abuse that reporting time pay was designed to discourage.”

So-called reporting time pay applies when an employee reports for work as required but either doesn’t work or works less than half of the usual or scheduled day’s work. In those cases, employers are supposed to pay for half the usual or scheduled day’s work, and not less than two hours or more than four hours, at the worker’s regular pay rate. That rate, of course, must comply with applicable minimum wage requirements.

If an employee must report a second time during a workday and works less than two hours, that person must be paid for two hours at his regular pay rate.

And rightly so; if employees must schedule their days around particular work schedules and make all the necessary arrangements, they should be compensated.

If you suspect that an employer has violated your protections under the law, contact Keller Grover for a free consultation. We can help you understand your options and steps you should take. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.