Ward v. Tilly's, Inc.

Filed 2/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
SKYLAR WARD, B280151
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC595405)
v.
TILLY’S, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Elihu Berle, Judge. Reversed.
McNicholas & McNicholas, Patrick McNicholas and
Michael J. Kent; Frank Sims & Stolper and Scott H. Sims;
Bridgford, Gleason & Artinian and Michael H. Artinian; Esner,
Chang & Boyer, Andrew N. Chang, Holly N. Boyer and Steffi A.
Jose for Plaintiff and Appellant.
O’Melveny & Myers, Apalla U. Chopra, Adam J. Karr,
Ryan Rutledge, and Briana LaBriola for Defendant and
Respondent.
Greenberg Traurig, Mark D. Kemple and Ryan C. Bykerk
for Amicus Curiae Abercrombie & Fitch Stores, Inc.
This appeal, which follows an order sustaining a demurrer
without leave to amend, concerns the practice of on-call
scheduling. As alleged, on-call scheduling works this way:
Employees are assigned on-call shifts, but are not told until they
call in two hours before their shifts start whether they should
actually come in to work. If they are told to come in, they are
paid for the shifts; if not, they do not receive any compensation
for having been “on call.”
Plaintiff Skylar Ward challenges the on-call scheduling
practices of her former employer, Tilly’s, Inc. (Tilly’s), as violating
wage order No. 7-2001 (codified at California Code of
Regulations, title 8, section 11070; hereafter, Wage Order 7),
which regulates the wages, hours, and working conditions in the
mercantile industry. Among other things, Wage Order 7 requires
employers to pay employees “reporting time pay” for each
workday “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.” Plaintiff contends
that when on-call employees contact Tilly’s two hours before on-
call shifts, they are “report[ing] for work” within the meaning of
the wage order, and thus are owed reporting time pay. Tilly’s
disagrees, urging that employees “report for work” only by
physically appearing at the work site at the start of a scheduled
shift, and thus that employees who call in and are told not to
come to work are not owed reporting time pay.
We conclude that the on-call scheduling alleged in this case
triggers Wage Order 7’s reporting time pay requirements. As we
explain, 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
2
ultimately are called in to work. This is precisely the kind of
abuse that reporting time pay was designed to discourage. We
therefore reverse the judgment and remand this case to the trial
court for further proceedings.1
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts2
Tilly’s is a California corporation based in Irvine,
California. In 2012, plaintiff worked as a sales clerk in a Tilly’s
store in Torrance, California.
During her employment with Tilly’s, plaintiff and other
employees were scheduled for a combination of regular and “on-
call” shifts (also referred to as “call-in” shifts), which had “a
designated beginning time and quitting time.” Employees were
required to contact their stores two hours before the start of their
on-call shifts to determine whether they were needed to work
those shifts. Tilly’s informed its employees to “consider an on-call
1 Because the issue is not properly before us at this early
stage of the proceedings, we do not consider whether our
interpretation of the wage order applies prospectively only, or
retroactively as well. (See Bearden v. U.S. Borax, Inc. (2006)
138 Cal. App. 4th 429, 443 [retroactive application of holding
necessarily involves factual and policy issues not before appellate
court on review of a judgment following order sustaining a
demurrer].)
2 A demurrer admits, provisionally for purposes of testing
the pleading, all material facts properly pleaded. (Tindell v.
Murphy (2018) 22 Cal.App.5th 1239, 1247.) Accordingly, we draw
our recitation of the facts from plaintiff’s operative first amended
complaint, the allegations of which we accept as true for purposes
of this appeal. (Fischer v. Time Warner Cable Inc. (2015)
234 Cal. App. 4th 784, 788, fn. 1.)
3
shift a definite thing until they are actually told they do not need
to come in.”
Tilly’s on-call shifts came in “various forms.” For example:
“a. Employees are scheduled for a regular shift as well as
an on-call shift later that same day. In such instances the
employee is required to physically show up for work at the time of
her regular shift and is told during her regular shift whether she
will also be required to work her on-call shift. [¶] Example:
Employee is scheduled for a regular shift from 11:00 a.m. to
3:00 p.m. and an on-call shift from 3:00 p.m. to 5:00 p.m.
“b. Employees are scheduled for on-call shift[s] earlier in
the day than . . . regular shift[s] scheduled on that same day. In
such instances the employee is required to call in to work,
physically show up to work, or otherwise establish contact with
the employer [two] hours before the scheduled on-call shift (or, if
the on-call shift is scheduled to begin before 10:00 a.m., a[t]
9:00 p.m. the night before) to determine if [s]he is required to
work the scheduled on-call shift. [¶] Example: Employee is
scheduled for an on-call shift from 10:00 a.m. to 12:00 p.m. and a
regular shift from 12:00 p.m. to 4:00 p.m.
“c. Employees are scheduled for on-call shifts on days
they are not scheduled for . . . regular shift[s]. In such instances
the employee is required to call into work, physically show up to
work, or otherwise establish contact with the employer [two]
hours before the scheduled on-call shift (or, if the on-call shift is
scheduled to begin before 10:00 a.m., a[t] 9:00 p.m. the night
before) to determine if she is required to work the scheduled on-
call shift. [¶] Example: Employee is scheduled for an on-call
shift from 10:00 a.m. to 2:00 p.m. with no regular shift that day.”
4
Employees were disciplined if they failed to contact their
stores before on-call shifts, or if they contacted the stores late, or
if they refused to work on-call shifts. Discipline included formal
written reprimands and, upon three violations, could include
termination. However, Tilly’s did not include on-call shifts as
part of the employee’s “scheduled day’s work” when calculating
pay unless the employee was required to work the on-call shift;
and it did not consider an employee to have “reported for work” if
he or she called the store prior to an on-call shift, but was told he
or she was not needed.
On-call shifts “take a toll on all employees, especially those
in low-wage sectors. Without the security of a definite work
schedule, workers who must be ‘on call’ are forced to make
childcare arrangements, elder-care arrangements, encounter
obstacles in pursuing their education, experience adverse
financial effects, and deal with stress and strain on their family
life. The ‘on-call’ shifts also interfere with employees’ ability to
obtain supplemental employment in order to ensure financial
security for their families.”
B. The Present Action
Plaintiff filed a putative class action complaint on
September 21, 2015, and filed the operative first amended
complaint (complaint) on July 5, 2016. The complaint alleged
that Wage Order 7 mandates that non-exempt retail employees
be paid “reporting time pay” if either “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” or “an employee is required to report for work a second
time in any one workday and is furnished less than two (2) hours
of work on the second reporting.” (Cal. Code Regs., tit. 8,
5
§ 11070, subd. (5).) The complaint alleged that Tilly’s employees
were due reporting time pay for on-call shifts, and that Tilly’s
failure to properly compensate employees for those shifts resulted
in violations of Wage Order 7, Labor Code sections 200–203, 226,
and 226.3, and Business and Professions Code section 17200.
C. Demurrer; Dismissal Order
Tilly’s demurred to the complaint, asserting that it failed to
state a cause of action. It contended that the first cause of action
for reporting time pay failed as a matter of law because requiring
employees to “call[] in to ask whether to report for work” did not
constitute “reporting for work” within the meaning of Wage
Order 7. The second, third, and fourth causes of action were
derivative of the first cause of action and, therefore, failed for the
same reason.
The trial court sustained the demurrer without leave to
amend. It explained: “[T]his court is persuaded that Defendant’s
interpretation of the phrase ‘report to work’ to mean that an
employee physically appears at the workplace is a correct
analysis and interpretation. [¶] . . . [¶] . . . [T]he court finds that
by merely calling in to learn whether an employee will work a
call-in shift, Plaintiff and other employees do not report to work
as contemplated by Wage Order 7. As such, Plaintiff is not
entitled to reporting-time pay under the Wage Order, and the
First Cause of Action for failure to pay reporting time pay fails.
[¶] . . . Plaintiff’s three remaining claims are derivative of the
first and fail for the same reasons.”
Plaintiff timely appealed from the dismissal order.3
3 The dismissal order was a “written order signed by the
court and filed in the action” and, thus, is appealable. (Code Civ.
Proc., § 581d [“All dismissals ordered by the court shall be in the
6
STANDARD OF REVIEW
“ ‘ “On appeal from an order of dismissal after an order
sustaining a demurrer, our standard of review is de novo, i.e., we
exercise our independent judgment about whether the complaint
states a cause of action as a matter of law.” ’ (Los Altos El
Granada Investors v. City of Capitola (2006) 139 Cal. App. 4th 629,
650.) In reviewing the complaint, ‘we must assume the truth of
all facts properly pleaded by the plaintiffs, as well as those that
are judicially noticeable.’ (Howard Jarvis Taxpayers Assn. v. City
of La Habra (2001) 25 Cal. 4th 809, 814.) We may affirm on any
basis stated in the demurrer, regardless of the ground on which
the trial court based its ruling. (Carman v. Alvord (1982)
31 Cal. 3d 318, 324.)” (Krolikowski v. San Diego City Employees’
Retirement System (2018) 24 Cal.App.5th 537, 549.)
DISCUSSION
I.
Background
A. Wage Orders and the Industrial Welfare Commission
In 1913, the Legislature established the Industrial Welfare
Commission (IWC) “and—spurred by concerns over inadequate
wages and poor working conditions—delegated to the agency
authority for setting minimum wages, maximum hours, and
working conditions.” (Augustus v. ABM Security Services,
Inc. (2016) 2 Cal.5th 257, 263 (Augustus).) The IWC began
issuing industry- and occupation-specific wage orders in 1916,
and it revised those wage orders from time to time. (Id. at
form of a written order signed by the court and filed in the action
and those orders when so filed shall constitute judgments and be
effective for all purposes, and the clerk shall note those
judgments in the register of actions in the case.”].)
7
p. 263.) Although the Legislature defunded the IWC in 2004, its
wage orders remain in effect. (Mendiola v. CPS Security
Solutions, Inc. (2015) 60 Cal. 4th 833, 838, fn. 6 (Mendiola).)
Wage orders are issued pursuant to an express delegation
of legislative power, and thus they have the force of law.
(Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th
542, 552–553 (Alvarado), citing Martinez v. Combs (2010)
49 Cal. 4th 35, 52–57 (Martinez) [setting forth a brief history of
the IWC].) The IWC’s wage orders originally applied only to
women and children, but since the 1970’s they have applied to all
employees, regardless of age and gender. (Alvarado, supra, at
p. 552; Stats. 1973, ch. 1007, § 8, p. 2004; Stats. 1972, ch. 1122,
§ 13, p. 2156; see also Industrial Welfare Com. v. Superior
Court (1980) 27 Cal. 3d 690, 700–701 (Industrial Welfare Com.).)
The specific wage order applicable in this case is
Wage Order 7, which governs “all persons employed in the
mercantile industry,” other than persons employed “in
administrative, executive, or professional capacities.” (Cal. Code
Regs., tit. 8, § 11070, subd. (1)(A).) The “mercantile industry” is
“any industry, business, or establishment operated for the
purpose of purchasing, selling, or distributing goods or
commodities at wholesale or retail; or for the purpose of renting
goods or commodities.” (Ibid., subd. (2)(H).)4
B. Interpretive Principles
Wage orders “are ‘quasi-legislative regulations and are
construed in the same manner as statutes under the ordinary
4 Other industries are governed by different wage orders, but
many of those wage orders contain similar provisions. (Alvarado,
supra, 4 Cal.5th at pp. 552–553.)
8
rules of statutory construction.’ ” (Morales v. 22nd Dist.
Agricultural Assn. (2016) 1 Cal.App.5th 504, 539–540; Aleman v.
Airtouch Cellular (2012) 209 Cal. App. 4th 556, 568 (Aleman);
Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th
1004, 1027 (Brinker).) Those rules dictate that we begin by
examining the language of the statute (or regulation) itself,
giving the words their ordinary and usual meaning. When the
language is clear, “we apply the language without further
inquiry.” (Aleman, at pp. 568–569.) If the regulation
is ambiguous—that is, it is susceptible to more than one
reasonable interpretation—we may use “ ‘a variety of extrinsic
aids. For example, [we] may consider the ostensible objects to be
achieved, the evils to be remedied, the legislative history, public
policy, contemporaneous administrative construction, and the
statutory scheme of which the statute is a part. In addition, the
court may consider the consequences that will flow from a
particular interpretation. [Citations.]’ (Jewish Community
Centers Development Corp. v. County of Los Angeles (2016)
243 Cal. App. 4th 700, 708.) A court ‘construing an ambiguous
statute must avoid, if it can, an interpretation that would lead to
absurd consequences.’ ” (Garcia v. American Golf Corp. (2017)
11 Cal.App.5th 532, 543.)
When construing wage orders, “we adopt the construction
that best gives effect to the purpose of the Legislature and the
IWC”—that is, the protection of employees. (Augustus, supra,
2 Cal.5th at p. 262, citing Mendiola, supra, 60 Cal.4th at p. 840
[“ ‘to promote employee protection’ ”]; Martinez, supra, 49 Cal.4th
at pp. 53–54 [describing the Legislature’s concerns]; Industrial
Welfare Com., supra, 27 Cal.3d at p. 702 [noting the “remedial
nature” of legislative enactments and wage orders].) “In
9
furtherance of that purpose, we liberally construe the Labor Code
and wage orders to favor the protection of employees.
(E.g., Brinker, at pp. 1026–1027; Murphy [v. Kenneth Cole
Productions, Inc. (2007) 40 Cal. 4th 1094,] 1103 [‘statutes
governing conditions of employment are to be construed
broadly’].)” (Augustus, supra, at pp. 262–263.) In doing so, we
accord the IWC’s interpretations “ ‘considerable judicial
deference.’ ” (Ibid.) We “take account of” enforcement policies of
the Division of Labor Standards Enforcement (DLSE), the state
agency that enforces wage orders (ibid.), but because such
policies “are not entitled to deference,” we will adopt the DLSE’s
interpretation only “having independently determined that it is
correct.” (Peabody v. Time Warner Cable, Inc. (2014) 59 Cal. 4th
662, 670.)
II.
The Wage Order’s Plain Language
We begin with the regulation’s plain language. Wage
Order 7 requires employers to pay employees reporting time pay,
as follows:
“(A) Each workday 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 shall not be
less than the minimum wage.
“(B) If an employee is required to report for work a second
time in any one workday and is furnished less than two (2) hours
of work on the second reporting, said employee shall be paid for
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two (2) hours at the employee’s regular rate of pay, which shall
not be less than the minimum wage.
“(C) The foregoing reporting time pay provisions are not
applicable when: [¶] (1) Operations cannot commence or
continue due to threats to employees or property; or when
recommended by civil authorities; or [¶] (2) Public utilities fail to
supply electricity, water, or gas, or there is a failure in the public
utilities, or sewer system; or [¶] (3) The interruption of work is
caused by an Act of God or other cause not within the employer’s
control.
“(D) This section shall not apply to an employee on paid
standby status who is called to perform assigned work at a time
other than the employee’s scheduled reporting time.” (Cal. Code
Regs., tit. 8, § 11070, subd. (5), italics added.)
The present dispute turns on the meaning of “report for
work,” a phrase Wage Order 7 uses, but does not define. Both
parties assert this phrase is unambiguous—but they interpret it
in very different ways.
Tilly’s argues that “report[ing] for work” requires an
employee’s physical presence at the workplace at the start of a
scheduled shift. Tilly’s says: “[A]n employee only reports for
work by being present (reporting) at the start of the shift (for
work). That is the plain meaning of Wage Order 7.” Thus, Tilly’s
urges, “the plain meaning of ‘report for work’ requires an
employee to present herself at the start of a shift—not merely to
verify the schedule in advance.” Amicus Abercrombie & Fitch
Stores, Inc. urges us to interpret “report for work” in similar
fashion, suggesting that Wage Order 7 requires reporting time
pay only “if the employee (1) shows up (‘reports’) (2) ready for
work (‘for work’).” By thus interpreting “report[ing] for work” to
11
mean physical presence at the work site, amicus asserts the IWC
“drew and maintained” a “bright-line rule.”
Plaintiff, in contrast, asserts that Wage Order 7 is
triggered by any manner of reporting, whether in person,
telephonic, or otherwise. She says: “There is no specific
language in [the] phrase [report for work] that requires or
necessitates that such reporting be physical in nature. In short,
the face of the wage order does not include an element requiring
that workers physically present themselves at a workplace.”
Thus, plaintiff urges: “In the modern era, where many workers
complete their tasks remotely, use telephones to clock in and
clock out for timekeeping purposes, and, check for shifts
telephonically, a commonsense and ordinary reading of the order
would include the reporting that Plaintiff engaged in in
accordance with Tilly’s policies.”
In our view, the text of Wage Order 7, alone, is not
determinative of the question before us. Some dictionary
definitions of “report” do, as Tilly’s says, have a spatial element—
i.e., “to go to a place or a person and say that you are there”
(Cambridge Dict. [as of Feb. 4, 2019], italics added), or to
“[p]resent oneself formally as having arrived at a particular place
or as ready to do something” (Oxford Dict. [as of Feb. 4, 2019], italics
added). Many other definitions, however, focus on the reporter’s
intent, rather than his or her location—for example, “to present
oneself as ordered” (Random House Webster’s College Dict.
(1992), p. 1142, col. 2, italics added), or “to present (oneself) to a
person in authority, as in accordance with requirements”
(Dictionary.com
12
[as of Feb. 4, 2019], italics added). Accordingly, as a purely
linguistic matter, it is not obvious whether “report[ing] for work”
requires an employee’s presence at a particular place (the work
site) at a particular time (the start of a shift)—or whether it also
may be satisfied by the employee presenting himself or herself in
whatever manner the employer has directed, including, as in this
case, by telephone, two hours before the scheduled start of an on-
call shift. We therefore turn to other interpretive tools for
guidance.
III.
Regulatory History and Purpose
A. Our Interpretation Is Not Limited by the IWC’s
Understanding of Wage Order 7 At the Time It
Was Adopted
Tilly’s and the dissent urge that our interpretation of
“report for work” should be governed by the IWC’s understanding
of the phrase at the time of its adoption in the 1940’s—an
understanding that did not contemplate employees reporting for
work by telephone. We disagree only in part. Telephonic
reporting requirements appear to be of recent vintage, and,
indeed, the cell phone technology that makes such telephonic
reporting feasible did not exist until many decades after the
reporting time pay requirement was enacted. We therefore agree
with Tilly’s and the dissent that “ ‘at least in 1947, the phrase
‘report [for] work’ meant physically showing up.’ ” (Dis. & conc.
opn. of Egerton, J., p. 3, post, citing Casas v. Victoria’s Secret
Stores, LLC (C.D. Cal., Dec. 1, 2014, No. CV 14-6412-GW)
2014 WL 12644922, at *4 (Casas).) Put simply, that is how an
employee reported for work in the 1940’s.
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The contemporaneous understanding of “report for work” is
not dispositive of our analysis, however. To the contrary, our
Supreme Court has held in construing statutes that predate their
possible applicability to new practices or technology, “courts have
not relied on wooden construction of their terms. Fidelity to
legislative intent does not ‘make it impossible to apply a legal
text to technologies that did not exist when the text was
created. . . . Drafters of every era know that technological
advances will proceed apace and that the rules they create will
one day apply to all sorts of circumstances they could not possibly
envision.’ (Scalia & Garner, Reading Law: The Interpretation of
Legal Texts (2012) pp. 85–86.)” (Apple Inc. v. Superior Court
(2013) 56 Cal. 4th 128, 137 (Apple Inc.).) Thus, in applying
existing statutes to new circumstances, “ ‘we must maintain our
usual deference to the Legislature in such matters and ask
ourselves first how that body would have handled the problem if
it had anticipated it. [Citation.]’ (People v. Butler (1996)
43 Cal. App. 4th 1224, 1229.)” (WorldMark, The Club v. Wyndham
Resort Development Corp. (2010) 187 Cal. App. 4th 1017, 1036
(WorldMark), italics added.)
The Supreme Court applied these principles in Apple Inc.,
supra, 56 Cal. 4th 128. There, the court considered whether a
provision of the Song-Beverly Credit Card Act (Song-Beverly)
that prohibited retailers from requiring credit card holders “ ‘to
write any personal identification information upon the credit card
transaction form or otherwise’ ” applied to online retail
purchases. (Id. at p. 132.) The court noted that Song-Beverly
had been enacted in 1990, almost a decade before online
commercial transactions became widespread, and thus the
Legislature “at the time it enacted [the provision at issue] . . . did
14
not contemplate commercial transactions conducted on the
Internet.” (Id. at pp. 136–137, italics omitted.) That fact,
however, “alone [was] not decisive” of the statute’s meaning.
Instead, the court looked to “the Legislature’s purpose in enacting
the statute” and “the statutory scheme as a whole” to determine
“whether it is applicable to a transaction made possible by
technology that the Legislature did not envision.” (Id. at pp. 138,
139.) Only after doing so did the court conclude that had the
Legislature in 1990 “been prescient enough to anticipate online
transactions involving electronically downloadable products,” it
would not have intended Song-Beverly’s prohibitions to apply to
them. (Id. at p. 141.)
The Court of Appeal reasoned similarly in WorldMark,
supra, 187 Cal. App. 4th 1017. There, the court considered
whether a provision of the Corporations Code that permitted
members of a nonprofit mutual benefit corporation to “ ‘copy the
record of all the members’ names [and] addresses’ ” (id. at
p. 1028, italics added) also entitled members to copy co-members’
e-mail addresses. The court noted that the Legislature “could not
have intended in 1978 that the term ‘addresses’ specifically would
include e-mail addresses, since the concept of widespread and
instantaneous communications by electronic mail was the stuff of
science fiction in 1978.” (Id. at p. 1034.) However, the court
reasoned, the statute’s legislative purpose indicates the
Legislature would have intended the inclusion of e-mail
addresses in the original statute had it anticipated the existence
of e-mail. It explained: “The comments based on the Legislative
Committee summary indicate the purpose of the statute was to
balance a member’s legitimate right to contact the membership
for election contests or purposes reasonably related to the
15
member’s interest, against the potential for abuse in allowing too
free an access. [Citation.] [¶] The addition of e-mail addresses
would do nothing to upset the balance that the Legislature
sought to achieve. Such balancing was accomplished by the
process of allowing the corporation to propose a reasonable
alternative. The use of e-mail addresses to achieve this goal does
not affect the balance.” (Id. at pp. 1035–1036.)
As relevant to the present case, Wage Order 7 does not
reference telephonic reporting, nor is there evidence that the IWC
ever considered whether telephonic reporting should trigger the
reporting time pay requirement. To paraphrase our Supreme
Court, such an omission “is not surprising” (Apple Inc., supra,
56 Cal.4th at p. 136) because neither the practice of on-call
scheduling nor the cell phone technology that makes such
scheduling possible existed when the IWC adopted the reporting
time pay requirement in the 1940’s. Consistent with Apple Inc.
and WorldMark, we therefore next consider whether, had the
IWC been “prescient enough to anticipate” cell phones and
telephonic call-in requirements, it “would have intended” the
reporting time pay requirement to apply.5 6
5 Tilly’s questions the need for this analysis, urging that the
only technology at issue “is the telephone—which has existed
longer than Wage Order 7” and was “ubiquitous” when the IWC
adopted the reporting time pay requirement in the early 1940’s.
We do not agree. Although telephones were in use throughout
the twentieth century, more than one in five households did not
have a telephone available even by 1960, nearly 20 years after
the IWC adopted reporting time pay requirements. (United
States Census Bureau, Historical Census of Housing Tables:
Telephones [as of Feb. 4, 2019].) It is reasonable
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B. Wage Order 7’s History and Purpose
In 1913, the California Legislature established the IWC to
adopt minimum wages, maximum hours, and standard working
conditions for the protection of women and minors.7 The first
to assume that the households that lacked access to telephones
disproportionately were made up of low-wage hourly workers, to
whom Wage Order 7 applied. Moreover, cell phones were not in
widespread use until the end of the twentieth century or the
beginning of the twenty-first century; and even as late as 2011,
the Pew Research Center reported that nearly one in five adults
did not own a cell phone. (Pew Research Center, Americans and
Their Cell Phones (Aug. 15, 2011) [as of Feb. 4,
2019].)
6 We respectfully disagree with the dissent’s suggestion that
by reaching this question, the court is “ ‘drawing up
interpretations that promote the Court’s view of good policy.’ ”
(Dis. & conc. opn. of Egerton, J., p. 1, post, quoting Casas, supra,
2014 WL 12644922, at *5.) As we have said, fidelity to legislative
intent “does not ‘make it impossible to apply a legal text to
technologies that did not exist when the text was created.’ ”
(Apple Inc., supra, 56 Cal.4th at p. 137.)
7 “To assist the IWC in this work, the Legislature gave the
[IWC] broad investigatory powers . . . . If, after investigation, the
IWC determined that the wages paid to women and minors in
any industry were ‘inadequate to supply the cost of proper living,
or the hours or conditions of labor [were] prejudicial to the
health, morals or welfare of the workers,’ the IWC was to convene
a ‘ “wage board” ’ of employers and employees. (Id., § 5, p. 634.)
Based on the wage board’s report and recommendations, and
following a public hearing, the commission was to issue wage
orders fixing for each industry ‘[a] minimum wage to be paid to
women and minors . . . adequate to supply . . . the necessary cost
17
minimum wage orders were issued in early 1916, and by 1923
minimum wage orders had been adopted to cover most industries.
(Dept. of Industrial Relations, Biennium Report (1945–1946)
pp. 50–52.)
The IWC revised nearly all of its industry orders in 1942
and 1943. Recommendations to the IWC provided by the
Canning and Preserving Industries Wage Board in 1942
described the need for reporting time pay as follows: “Allowing a
large number of workers to come to the plant when there is little
or no work for them is serious abuse. The testimony [to the Wage
Board] showed that able employers through the information
collected by their organization eliminated this evil almost
entirely. Incompetent employers are able, however, to make the
worker pay for their incompetency. It is an obvious advantage to
the employer to have plenty of workers around for all
emergencies if he does not have to pay for them. . . . [¶] . . . [¶]
. . . [Reporting time pay] is a penalty which will make the
employers careful to see that there is work and some
compensation for the time and expense of the employee in
reporting.” (Kidd, Chairman, Comment on the Rep. of the Wage
Bd. for the Canning and Preserving Industries (July 21, 1942)
pp. 8–9.)
Effective June 21, 1943, the IWC adopted revised Wage
Order 7, which included a reporting time pay requirement as
follows: “Each day an employee is required to report for work
and does report for work, but is not put to work or works four (4)
of proper living and to maintain [their] health and welfare’ (id.,
§ 6, subd. (a), par. 1, p. 634), the maximum hours of work, and
the standard conditions of labor (id., subd. (a), pars. 2–3, pp. 634–
635).” (Martinez, supra, 49 Cal.4th at pp. 54–55.)
18
hours or less, the employer shall pay the employee for not less
than four (4) hours at fifty cents (50¢) per hour . . . .” (IWC
meeting mins. (Apr. 5, 1943) pp. 39, 45.)8 The IWC explained it
was necessary to require employers to pay employees who
reported but were not put to work because of “the prevalence of
such practices, and in order to compensate the employee for
transportation costs and loss of time.” (Id. at p. 34.)
The same year, IWC also revised the wage order governing
the housekeeping industry (wage order No. 5) to include a
reporting time pay requirement. In connection with the revision,
the IWC considered an employer request that employees who
resided at the workplace be paid only two hours of reporting time
pay, rather than the proposed four hours, because such
employees “do[] not lose the usual time going to and from the
place of employment.” (IWC meeting mins. (Feb. 5, 1943) p. 6.)
The IWC rejected the proposal, adopting a four-hour reporting
time pay requirement for both resident and non-resident
employees. (Id. at p. 26.) Subsequently, the IWC issued a ruling
addressing whether the reporting time pay provision applied to
resident employees; the IWC unanimously ruled that the four-
hour reporting time pay requirement applied to both resident and
non-resident employees. (IWC meeting mins. (Sep. 11, 1943)
p. 18.)
The IWC adopted the current reporting time pay provision
of Wage Order 7 in 1979. In addition to the original language
(which was designated § (5), subdivision (A)), the IWC added
8 This provision was revised in 1947, to replace “at fifty cents
(50¢) per hour” with the phrase “at the employee’s regular rate of
pay, which shall be not less than the minimum wage herein
provided.” (IWC meeting mins. (Feb. 8, 1947) p. 91.)
19
three new provisions, which stated that employees were entitled
to two hours of reporting time pay if they were required to report
for work a second time in one workday but were furnished less
than two hours of work (subd. (B)); reporting time pay was not
owed if operations could not commence for enumerated reasons
beyond the employer’s control (subd. (C)); and reporting time pay
“shall not apply to an employee on paid standby status who is
called to perform assigned work at a time other than the
employee’s scheduled reporting time” (subd. (D)). (Dept. of
Industrial Relations, Div. of Labor Stds. Enforcement, Public
Meeting to Adopt Revised Orders (Sep. 7, 1979) pp. 1–2, 5, 23–24,
127–129.) The IWC explained that “[t]he requirement for
reporting time pay historically has been included in the
commission’s orders on the basis that it is necessary to
employee[s’] welfare that they be notified in advance when
changes in their starting time must be made. It has been deemed
a [maximum] of four hours’ pay adequate to encourage proper
notice and scheduling. [¶] The commission received no
compelling evidence, and concluded there was no rationale to
warrant making any change in the provisions of this section,
which date back to 1942.” (Id. at pp. 55–56, italics added; see
also id. at pp. 127, 129–130.)
This history thus reveals, as our Supreme Court has said,
that the IWC’s purpose in adopting reporting time pay
requirements was two-fold: to “compensate employees” and
“ ‘encourag[e] proper notice and scheduling.’ ” (Murphy, supra,
40 Cal.4th at pp. 1111–1112.)9 With these twin goals in mind, we
9 These twin goals have repeatedly been reflected in
enforcement guidance provided by the Department of Industrial
Relations (DIR) and the DLSE. The DIR noted in a 1965
20
turn to the question before us—whether, had the IWC considered
the issue, it would have concluded that telephonic call-in
requirements trigger reporting time pay.
C. The Wage Order’s History and Purpose Are Consistent
With Requiring Reporting Time Pay for On-Call
Shifts
We conclude that had the IWC confronted the issue, it
would have determined, as we do, that the telephonic call-in
requirements alleged in the operative complaint trigger reporting
time pay. We note as an initial matter that the on-call practices
plaintiff alleges have much in common with the specific abuse the
IWC sought to combat by enacting a reporting time pay
requirement in 1942. Like requiring employees to come to a
workplace at the start of a shift without a guarantee of work,
unpaid on-call shifts are enormously beneficial to employers:
They create a large pool of contingent workers whom the
employer can call on if a store’s foot traffic warrants it, or can tell
enforcement manual that the “primary purpose” of the reporting
time pay requirement is “to guarantee at least partial
compensation for employees who expect to work a specified
number of hours and who are deprived of that amount by the
employer.” The DLSE similarly noted in a 1978 manual, stating
that the “primary purpose” of the reporting time pay requirement
was to guarantee at least partial compensation “for employees
who report to work expecting to work a specified number of
hours, and who are deprived of that amount because of
inadequate scheduling or lack of proper notice by the employer.”
However, as we have noted, the DLSE’s interpretations “are not
entitled to deference,” and thus we will adopt them only if we
independently determine they are correct. (See Peabody v. Time
Warner Cable, Inc., supra, 59 Cal.4th at p. 670.)
21
not to come in if it does not, without any financial consequence to
the employers. This permits employers to keep their labor costs
low when business is slow, while having workers at the ready
when business picks up. It thus creates no incentive for
employers to competently anticipate their labor needs and to
schedule accordingly.
Like other kinds of contingent shifts, unpaid on-call shifts
impose tremendous costs on employees. Because Tilly’s requires
employees to be available to work on-call shifts, they cannot
commit to other jobs or schedule classes during those shifts. If
they have children or care for elders, they must make contingent
childcare or elder care arrangements, which they may have to
pay for even if they are not called to work. And they cannot
commit to social plans with friends or family because they will
not know until two hours before a shift’s start whether they will
be available to keep those plans. In short, on-call shifts
significantly limit employees’ ability to earn income, pursue an
education, care for dependent family members, and enjoy
recreation time.
Further, because employees must contact Tilly’s two hours
before the start of on-call shifts, their activities are constrained
not only during the on-call shift, but two hours before it as well.
That is, at the time employees are required to call in to find out
whether they will be required to work on-call shifts, they cannot
do things that are incompatible with making a phone call, such
as sleeping, watching a movie, taking a class, or being in an area
without cell phone service. For example, consider an employee
who has been scheduled for an on-call shift from 10:00 a.m. to
12:00 p.m., followed by a scheduled shift from 12:00 p.m. to
4:00 p.m. If Tilly’s tells the employee at 8 a.m. that she is not
22
needed for the on-call shift, she will not be paid anything for that
shift. Nevertheless, she will necessarily have forgone sleeping,
working another job, taking a class, etc. both at 8 a.m. and
between 10:00 a.m. and 12:00 p.m. In short, the employer will
have imposed to some degree on four hours of the employee’s
time—an imposition for which it will not owe the employee any
compensation.
For all of these reasons, we conclude that requiring
reporting time pay for on-call shifts is consistent with the IWC’s
goals in adopting Wage Order 7. Reporting time pay requires
employers to internalize some of the costs of overscheduling, thus
encouraging employees to accurately project their labor needs
and to schedule accordingly. Reporting time pay also partially
compensates employees for the inconvenience and expense
associated with making themselves available to work on-call
shifts, including forgoing other employment, hiring caregivers for
children or elders, and traveling to a worksite. Finally, reporting
time pay makes employee income more predictable, by
guaranteeing employees a portion of the wages they would earn if
they were permitted to work the on-call shifts.
Tilly’s urges that reporting time pay for on-call shifts is
inconsistent with the IWC’s intent, which it characterizes solely
as “ ‘compensat[ing] the employee for transportation costs and
loss of time.’ ” Tilly’s contends that “making a phone call to check
one’s schedule is not something that the IWC intended to
compensate, since it does not involve transportation costs or loss
of time in the same way that actually reporting for work does.”
There are several problems with Tilly’s analysis, most
significantly that it reads one of the IWC’s primary purposes—
“encourag[ing] proper notice and scheduling”—out of the
23
legislative and regulatory history. As we have said, the IWC
identified its intention to encourage proper notice and scheduling
when it first adopted a reporting time pay requirement in 1943,
and it reiterated those concerns subsequently.
Moreover, while time spent commuting to work
undoubtedly was one of the things the IWC had in mind when it
referred to “loss of time,” it was not the only one. Indeed, had the
IWC intended to compensate employees only for commuting time,
it logically would have keyed reporting time pay to distance
traveled, such that employees who lived greater distances from
work would receive more reporting time pay than employees who
lived closer to work. Instead, the IWC tied reporting time pay
not to an employee’s commuting time, but to the length of the
shift the employee was expecting to work. Significantly, it also
allowed reporting time pay of up to four hours—an amount far in
excess of the time it takes most employees to commute to and
from work. And, as we have said, it specifically declined to limit
reporting time pay for employees who resided at the workplace,
who thus “do[] not lose the usual time going to and from the place
of employment.” (IWC meeting mins. (Feb. 5, 1943) p. 6.) This
suggests that the “loss of time” the IWC was concerned about was
not solely commuting time, but also lost work time and the
accompanying loss of income.
Further, the contingent nature of an on-call shift means
that some employees—namely, those who commute more than
two hours to work—will incur transportation costs
notwithstanding the two-hour window. Employees who must
commute more than two hours, either because they cannot afford
housing close to work or must rely on public transportation to get
to work, will have to begin traveling to work before they know
24
whether they will actually work their on-call shifts, thus
incurring both transportation expenses and lost commuting time.
And, even employees whose commute is less than two hours may
have to begin readying themselves for work (ironing a uniform,
dressing for work, etc.) before they know whether they will work
on-call shifts.
Finally, Tilly’s suggestion that reporting time pay was
intended only to compensate employees for travel time and
expense also cannot be squared with the exception in the
reporting time pay provision for shifts cancelled for reasons
beyond the employer’s control. This exception makes sense only
if reporting time pay was intended to impose a penalty for
overscheduling—not if reporting time pay was intended only to
compensate employees for travel time and expense. Put simply,
employees’ travel time and expenses are not reduced because the
employer has a good reason for canceling a shift.
Based on the foregoing, we conclude, contrary to the trial
court, that an employee need not necessarily physically appear at
the workplace to “report for work.” Instead, “report[ing] for
work” within the meaning of the wage order is best understood as
presenting oneself as ordered. “Report for work,” in other words,
does not have a single meaning, but instead is defined by the
party who directs the manner in which the employee is to present
himself or herself for work—that is, by the employer.
As thus interpreted, the reporting time pay requirement
operates as follows. If an employer directs employees to present
themselves for work by physically appearing at the workplace at
the shift’s start, then the reporting time requirement is triggered
by the employee’s appearance at the job site. But if the employer
directs employees to present themselves for work by logging on to
25
a computer remotely, or by appearing at a client’s job site, or by
setting out on a trucking route, then the employee “reports for
work” by doing those things. And if, as plaintiff alleges in this
case, the employer directs employees to present themselves for
work by telephoning the store two hours prior to the start of a
shift, then the reporting time requirement is triggered by the
telephonic contact.10
IV.
Reporting Time Pay for On-Call Shifts Is
Consistent With Supreme Court Authority
Our conclusion that employees may be owed reporting time
pay for on-call shifts is consistent with our Supreme Court’s
recent decision in Augustus, supra, 2 Cal.5th 257. The plaintiffs
in that case were security guards who were required to keep their
pagers and phones on during 10-minute rest breaks and to
respond to calls as needed. (Id. at p. 260.) Plaintiffs sued,
asserting that by requiring them to remain on-call during breaks,
the employer was not providing them with true “rest” breaks.
The trial court granted the plaintiffs’ motion for summary
adjudication, concluding that “an on-duty or on-call break is no
break at all.” (Id. at p. 261.) The Court of Appeal disagreed and
10 Our conclusion is consistent with Tilly’s examples that an
attorney may “report” (appear) telephonically at the time of a
hearing, but a prisoner must “report” (surrender) in person. The
relevant distinction is not, as Tilly’s suggests, when the
individual reports, but whether he does so in the manner
directed. That is, an attorney may appear telephonically if (and
only if) the court has given him or her permission to do so;
prisoners must surrender in person because they have been so
instructed.
26
reversed, concluding that “ ‘simply being on call’ ” is not
inconsistent with a period of rest. (Id. at p. 262.)
The Supreme Court granted review and reinstated the
grant of summary adjudication for the security guards. It
observed that applicable law required hourly employees be
provided “rest periods,” but it did not define the term.
Nonetheless, the court said, “one cannot square the practice of
compelling employees to remain at the ready, tethered by time
and policy to particular locations or communications devices,
with the requirement to relieve employees of all work duties and
employer control during 10-minute rest periods.” (Augustus,
supra, 2 Cal.5th at p. 269.) The court explained: “Although
Wage Order 4[11] is silent as to on-call rest periods, our
construction of [the rest period requirement] cannot be reconciled
with permitting employers to require employees to remain on
call. As we explained, a rest period means an interval of time
free from labor, work, or any other employment-related duties.
And employees must not only be relieved of work duties, but also
be freed from employer control over how they spend their time.
[Citation.] . . . . [¶] . . . [¶]
“. . . Whatever else being on call entails in the context of a
required rest break, that status compels employees to remain at
the ready and capable of being summoned to action [citation].
11 Augustus concerned Wage Order 4, which governs
individuals employed “in professional, technical, clerical,
mechanical, and similar occupations.” (Cal. Code Regs., tit. 8,
§ 11040, subd. (1).) Wage Order 4 and Wage Order 7 have
identical rest period and reporting time pay requirements.
(Compare 8 Cal. Code Regs., § 11040, subds. (5), (12), and
§ 11070, subds. (5), (12).)
27
Employees forced to remain on call during a 10-minute rest
period must fulfill certain duties: carrying a device or otherwise
making arrangements so the employer can reach the employee
during a break, responding when the employer seeks contact with
the employee, and performing other work if the employer so
requests. These obligations are irreconcilable with employees’
retention of freedom to use rest periods for their own purposes.
[Citation.]
“This very case provides an apt example. The trial court
determined it was undisputed that [the employer’s] policy
required plaintiffs to keep radios and pagers on, remain vigilant,
and respond if the need arose. Given these intersecting realities,
on-call rest periods do not satisfy an employer’s obligation to
relieve employees of all work-related duties and employer control.
In the context of a 10-minute break that employers must provide
during the work period, a broad and intrusive degree of control
exists when an employer requires employees to remain on call
and respond during breaks. [Citation.] An employee on call
cannot take a brief walk—five minutes out, five minutes back—if
at the farthest extent of the walk he or she is not in a position to
respond. Employees similarly cannot use their 10 minutes to
take care of other personal matters that require truly
uninterrupted time—like pumping breast milk (see [Labor Code]
§ 1030 [regarding use of break time for expressing milk for an
infant]) or completing a phone call to arrange child care. The
conclusion that on-call rest periods are impermissible is not only
the most logical in light of our construction of Wage Order 4,
subdivision 12(A), but is the most consistent with the protective
purpose of the Labor Code and wage orders.” (Augustus, supra,
2 Cal.5th at pp. 269–271.)
28
We recognize that Augustus addressed rest periods, not
reporting time pay, and thus it does not control the case before
us. It nonetheless is instructive. The court’s holding in Augustus
was grounded in its conclusion that if an employer limits the
kinds of activities employees can engage in during off-duty time,
they are not truly off-duty. That analysis plainly has resonance
in this case, where, as we have described, the employer’s on-call
requirement limits how employees can use their off-duty time—
and does so not merely for 10 minutes (during breaks which, by
their nature, impose “practical limitations on an employee’s
movement” (Augustus, supra, 2 Cal.5th at p. 270)), but instead
over several hours before and during on-call shifts. Indeed, as we
have said, Tilly’s call-in requirement imposes significant
limitations on how employees can use their time both two hours
before an on-call shift, when they must be available to contact
Tilly’s, and during the on-call shift itself, when employees must
be available to work. As such, the call-in requirement is
inconsistent with being off-duty, and thus triggers the reporting
time pay requirement.
V.
Tilly’s Public Policy Arguments
Are Not Persuasive
Notwithstanding the foregoing, Tilly’s suggests that
requiring reporting time pay for on-call shifts is unworkable and
will have absurd unintended consequences. These claims are
without merit.
First, Tilly’s suggests that if calling in two hours before an
on-call shift triggers reporting time pay, employers will have to
pay employees who are told to come to work but then fail to show
up. Tilly’s urges: “Consider the case of an employee who calls at
29
8 a.m. and learns he is expected to work at 10 a.m., but who is
sick that day or for some other reason does not actually go to the
store for work. According to Appellant, that employee has
nevertheless ‘reported for work,’ simply because the employee
made the phone call. . . . [¶] . . . [¶] Appellant’s interpretation of
the Wage Order thus leads to absurd results: if calling in
advance qualifies as reporting for work, then the employee is free
to be absent from work at the start of his shift and still receive
reporting-time pay.”
Tilly’s contention rests on a misreading of the statutory
language. Wage Order 7 requires reporting time pay if 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.” (Cal. Code Regulations., tit. 8,
§ 11070, subd. 5(A), italics added.) In other words, an employee
is owed reporting time pay only if upon reporting for work, she is
denied the opportunity to work. In Tilly’s example, the employee
was not denied the opportunity to work—to the contrary, she was
directed to work the on-call shift. She thus has no colorable claim
to reporting time pay.
Second, Tilly’s suggests that if on-call shifts trigger
reporting time pay, the employees will be entitled to
compensation merely for ascertaining their schedules—
something Tilly’s says has never been compensable. Tilly’s
frames the issue this way: “Employees undoubtedly must
ascertain when they are supposed to work. . . . Sometimes
schedules will be posted weeks or days in advance. And
sometimes, as here, employees will not know their schedules
until they call in, either two hours beforehand or the day before.
No matter how far in advance it takes place, however, the act of
30
ascertaining one’s working schedule does not constitute reporting
for work.”
Tilly’s assertion is partially correct: Employers do not
trigger reporting time pay requirements merely by expecting
employees to apprise themselves of their schedules. It goes
without saying that an employee cannot arrive at work on time
without knowing when his or her shift begins. But as pled in
plaintiff’s complaint, Tilly’s did not merely require employees to
check their schedules as a necessary predicate to getting to work
on time—it required employees to call in exactly two hours before
the start of on-call shifts, and it “treat[ed] calling in late for an
on-call shift or failing to call in for an on-call shift the same as
missing a regularly scheduled shift.” In other words, under
Tilly’s on-call regime, failing to call in two hours before an on-call
shift was an independent disciplinary offense, separate and apart
from not coming to work on time. As such, Tilly’s call-in
procedure required far more of employees than merely
“ascertain[ing] when they are supposed to work,” and thus it
properly triggered the reporting time pay requirement.
Third, Tilly’s contends that permitting employees to earn
reporting time pay for calling in prior to the start of a shift is
unworkable because “there is no limit to how far in advance of a
shift an employee might ‘report for work’ . . . . If [an employee]
called in two days before, or three days before, or a week before,
or two weeks before, in each case she would be performing exactly
the same act: ascertaining by phone, in advance of a shift,
whether to actually report for it.” In so urging, Tilly’s attacks a
straw man because it is the employer, not the employee, who
31
directs how employees report for work.12 As we have said, we do
not hold that employees are entitled to reporting time pay
whenever they contact their employer to determine what their
schedule is. We hold only that if, as plaintiff alleges in this case,
the employer requires the employee to call in two hours before
the start of a shift, and the employee does so but “is not put to
work or is furnished less than half said employee’s usual or
scheduled day’s work,” then the employer is liable for reporting
time pay.
Fourth, Tilly’s contends that applying Wage Order 7 to on-
call shifts is unworkable because the regulation does not specify
how much advance notice employees must be given to avoid a
reporting time penalty. We agree that the wage order potentially
creates some difficult line-drawing challenges, but we need not
resolve all of those challenges to answer the limited question
before us: whether the particular labor practice Tilly’s is alleged
to have engaged in implicates the reporting time pay provision of
Wage Order 7. (E.g., Verdugo v. Target Corp. (2014) 59 Cal. 4th
312, 316, fn. 1 [“we do not resolve abstract questions of law but
rather address only issues that ‘are presented on a factual
record’ ”].)13
12 The so-called “absurd outcomes” amicus posits miss the
mark for the same reason. As we have said, the reporting time
pay requirement is triggered when an employee calls at the
employer’s direction to confirm an on-call shift. It is not triggered
“anytime an employee . . . call[s]-in or otherwise check[s] [his or
her] schedule.”
13 Indeed, the need to draw the kinds of lines Tilly’s suggests,
by determining how much advance notice is necessary to avoid a
reporting time penalty, may never be before a court for the
32
Finally, both Tilly’s and amicus make much of the
California Legislature’s recent consideration of predictive
scheduling bills, which would require employers to pay employees
one hour of pay for each shift change made with less than one
week’s notice, and two hours or four hours of pay for each shift
change made with less than 24 hours’ notice or for each on-call
shift for which the employee is required to be available but is not
called in to work. (See Assem. Bill No. 357 (2015–2016 Reg.
Sess.); Sen. Bill No. 878 (2015–2016 Reg. Sess.).) Tilly’s and
amicus contend that these predictive scheduling bills would have
been entirely unnecessary if on-call shift pay were already
required by wage order. We do not agree. The proposed
legislation went further than the reporting time pay provision of
Wage Order 7, requiring employees to be compensated for most
schedule changes made with less than a week’s notice. Thus,
although the proposed legislation would have compensated
employees for on-call shifts, its reach was far broader. Moreover,
as the parties have noted, lower courts have split over the
applicability of Wage Order 7 to on-call shifts, with at least one
federal district court (as well as the trial court in this case)
concluding that reporting time pay was not owed for call-in
simple reason that employers may not find four-hour, or eight-
hour, or 24-hour call-in shifts economically desirable. That is,
two-hour call-in periods give employers flexibility to match the
size of the work force to the number of customers in a store at
any given time. A longer call-in period likely would not be
similarly advantageous from an employer’s point of view because
it is not clear that employers would be better able to predict
staffing needs eight hours before a shift than they would, say, a
week before a shift.
33
shifts.14 In light of this uncertainty, it is unsurprising that
legislators included on-call shift pay as part of broader predictive
scheduling legislation. Their decision to do so, however, tells us
nothing about the meaning of existing law. Indeed, as Tilly’s
concedes, “ ‘[u]npassed bills, as evidence of legislative intent,
have little value.’ ” (Apple Inc., supra, 56 Cal.4th at p. 146.)
14 See Casas, supra, 2014 WL 12644922, p. 5 [employee
“ ‘report[s] for work’ ” only by “actually, physically show[ing] up
at the workplace”]; Bernal v. Zumiez, Inc. (E.D. Cal. Aug. 17,
2017) 2017 WL 3585230, p. 3 [telephonically calling in “falls
under the ambit of activity enforceable by the wage order”]; Segal
v. Aquent LLC (S.D. Cal., Sep. 24, 2018, No. 18cv346-LA)
2018 WL 4599754 [adopting Bernal’s analysis].
34
DISPOSITION
The judgment of dismissal and order sustaining the
demurrer are reversed, and the case is remanded to the trial
court for further proceedings consistent with this opinion.
Plaintiff is awarded her appellate costs.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
I concur:
DHANIDINA, J.
35
EGERTON, J., Concurring and Dissenting.
I agree we must remand the case for plaintiff and appellant
Skylar Ward to pursue a single theory against defendant and
respondent Tilly’s Inc.: that she reported for work, in person, but
was sent home before her add-on shift and not paid. I otherwise
respectfully dissent. The legislative history of the phrase “report
for work” reflects the drafters’ intent that―to qualify for
reporting time pay―a retail salesperson must physically appear
at the workplace: the store. As one federal judge has observed,
our “fundamental task in interpreting Wage Orders is
ascertaining the drafters’ intent, not drawing up interpretations
that promote the Court’s view of good policy.” (Casas v. Victoria’s
Secret Stores, LLC (C.D.Cal., Dec. 1, 2014, No. CV 14-6412-GW)
2014 WL 12644922, at *5 [nonpub. opn.] (Casas).) It is our
Legislature’s responsibility to enact any necessary legislation to
address any hardship to employees who are required to call their
employers to discover if they must report for work.
A. Ward’s First Amended Complaint
Ward’s first amended complaint alleges three kinds of what
she terms “on-call shifts”: (1) Tilly’s schedules the employee for a
regular shift followed by an on-call shift. The employee must
physically come to work for her regular shift; Tilly’s then tells her
“during her regular shift whether she also will be required to
work her on-call shift.” (2) Tilly’s schedules the employee for a
regular shift preceded by an on-call shift. The employee must
contact Tilly’s two hours before the on-call shift would start (or by
9:00 p.m. the night before if the on-call shift is scheduled for
10:00 a.m.) to find out if she must work the on-call shift―in other
words, if she must come to work two hours before her regular
shift. (3) Tilly’s schedules the employee for an on-call shift on a
1
day she otherwise is not scheduled to work. The employee must
contact Tilly’s two hours before the on-call shift would start (or by
9:00 p.m. the night before if the on-call shift is scheduled for
10:00 a.m.) to find out if she must work the on-call shift.
B. On-call Shifts for Which the Employee Never Actually
Reports in Person
A version of types two and three of the on-call shifts Ward
alleges was at issue in Casas. There, the plaintiffs alleged their
employer, a clothing retailer, scheduled them for “call-in shifts.”
The employer required employees to call in two hours before the
shift to find out if they had to report. The retailer moved to
dismiss the lawsuit and the court―United States District Judge
George Wu―granted the motion. Judge Wu concluded, “[C]all-in
shifts do not trigger reporting-time penalties, even if the
scheduling practice is inconvenient and employee-unfriendly.”
(Casas, supra, 2014 WL 12644922, at *1–2.)
Judge Wu noted the parties read the phrase “report for
work” differently. The court stated, “[V]arious dictionaries agree
that the verb ‘report’ means, at least, ‘to present oneself.’ ” After
discussing definitions of “report” and “present” in five different
dictionaries, Judge Wu concluded, “Viewed in context, then, the
plain meaning of the word ‘report’ supports [the retailer’s]
interpretation―that a person ‘reports to work’[1] by physically
showing up at the place ready to work.” (Casas, supra, 2014
WL 12644922, at *3.)
1 Judge Wu sometimes quoted the wage order as using the
phrase “report to work” rather than “report for work.” The court
focused more on the meanings of the words “report” and “to
present oneself” than on any difference between the prepositions
“for” and “to.”
2
Judge Wu then turned to the legislative history of the wage
order. The court noted an earlier version of the wage order,
adopted in June 1947, used the phrase “report for work” this way:
“No woman employee shall be required to report for work or be
dismissed from work between the hours of 10 p.m. and 6 a.m.
unless suitable transportation is available.” (Casas, supra, 2014
WL 12644922, at *4, citing Docket No. 27-1, Ex. D, IWC Wage
Order No. 7 R (effective June 1, 1947) [at 91 § 3(c)].) Judge Wu
observed “[t]hat same 1947 Wage Order also included language
almost identical to the current reporting-time provisions, stating:
‘Each day an employee is required to report for work and does
report, but is not put to work or is furnished less than half the
usual day’s work, said employee shall be paid for half the usual
day’s work at the employee’s regular rate of pay, which shall be
not less than the minimum wage herein provided.’ ” The court
continued, “A basic rule of statutory construction states that
identical words or phrases used in the same statute bear the
same meaning, particularly where they appear in close
proximity.” (Id. at *4.) Judge Wu also cited minutes of a 1942
IWC meeting, concluding, “The legislative history therefore
strongly suggests that, at least in 1947, the phrase ‘report to
work’ meant physically showing up.” (Ibid.)
Judge Wu continued, “Nothing in the legislative history
indicates that the IWC ever altered this meaning. Indeed, the
phrase ‘[e]ach day an employee is required to report for work and
does report’ has remained unchanged throughout later versions of
the Wage Order. This consistency strongly suggests that the
IWC intended the phrase ‘report for work’ to have the same
meaning as in prior orders.” (Casas, supra, 2014 WL 12644922,
at *5.) Judge Wu stated, “This legislative history is entirely
3
consistent with the Court’s earlier plain-meaning interpretation
and essentially ends the discussion. The ordinary meaning of the
phrase ‘report for work’ is to actually, physically show up.” The
court noted, “The fundamental task in interpreting Wage Orders
is ascertaining the drafters’ intent, not drawing up
interpretations that promote the Court’s view of good policy.”
(Ibid.)
Finally, Judge Wu observed that the retailer’s “call-in
scheduling policy is somewhat unfriendly to employees and
disrespects their time.” The court noted that policy “may make
it harder to attract quality employees” and “result in high
turnover.” But, Judge Wu concluded, “the Wage Order’s
reporting-time provisions do not provide a remedy.” (Casas,
supra, 2014 WL 12644922, at *6 & fn. 6.)
Judge Wu’s opinion is thorough, well-reasoned, and
sensible. I would follow it.
In addition to the “suitable transportation” language Judge
Wu discusses, other legislative history supports the conclusion
that, by “report[ing] for work,” the wage order’s drafters meant
showing up in person. In 1943, the IWC enacted a reporting time
pay provision for employees who “report for work.” The IWC
explicitly found the reason for paying reporting time premiums is
to “compensate the employee for transportation costs and loss of
time.” (IWC meeting mins. (Apr. 5, 1943) ¶ 16, p. 34.) Other
IWC actions from the early 1960s to the late 1970s were
consistent with this intent. (See, e.g., Cal. Dept. of Industrial
Relations, Div. of Industrial Welfare, Enforcement Manual
(Oct. 1965) ¶ 418 (referring to Wage Order No. 14) [by enacting
reporting time pay provision, IWC was attempting to “guarantee
4
the worker some earnings for making the trip to the place of
employment”].)
There is more, much more. The legislative history
consumes some 18,000 pages. But discussions of legislative
history can waterlog the most buoyant reader. Suffice it to say
here that no objective reader can study this complete legislative
history and disagree with Judge Wu.
Ward relies on a different unpublished federal case decided
not quite three years later, Bernal v. Zumiez, Inc. (E.D.Cal.,
Aug. 17, 2017, No. 2:16-cv-01802-SB) 2017 WL 3585230 [nonpub.
opn.] (Zumiez).2 As did Casas, Zumiez seems to concern a version
of types two and three of the on-call shifts at issue here. The
plaintiffs in Zumiez alleged their employer required them “to call
in prior to regularly scheduled shifts three or four times a week”
to find out if they had to come in to the store. (Zumiez, supra,
2017 WL 3585230, at *1.) The court (United States District
Judge Stanley A. Bastian) stated the issue as whether
“ ‘report[ing] for work’ means physically coming to the workplace”
or, instead, “if telephonic reporting is sufficient for reporting time
pay to inure.” (Id. at *2.) The court noted, “The case becomes a
question of statutory interpretation: does the wage order require
workers to physically come to the workplace in order to report?”
(Id. at *3.)
2 That case now is on appeal in the United States Court of
Appeals for the Ninth Circuit, No. 18-15135, after the district
court certified its order for interlocutory appeal. The original
plaintiff, Alexandra Bernal, dropped out of the case and the lead
plaintiff now is Alexia Herrera. For clarity, I refer to the case as
Zumiez. Oral argument is scheduled for February 4, 2019.
5
The Zumiez court “conclude[d] that a ‘plain meaning’
reading―one that applies a commonsense interpretation―
supports the conclusion that telephonically calling in falls under
the ambit of activity enforceable by the wage order.” The court
stated, “This legislative phrase [report for work] is facially
unambiguous, and does not require a dictionary for
interpretation.” The court also found “no need for the Court to
engage with the legislative history of the wage order.” (Zumiez,
supra, 2017 WL 3585230, at *3.) The Zumiez court said it “[took]
notice of the order issued in [Casas]” (id. at *1), but the court did
not discuss Judge Wu’s reasoning or conclusions. Respectfully,
the Zumiez opinion is an ipse dixit. It is unpersuasive.
In a third unpublished federal case, Segal v. Aquent LLC
(S.D.Cal., Sept. 24, 2018, No. 18cv346-LAB) 2018 WL 4599754
[nonpub. opn.] (Segal), a federal district court in San Diego
agreed with Zumiez, but asked the parties to “keep the Court
apprised of developments” in the Zumiez appeal before the Ninth
Circuit. (Segal, supra, 2018 WL 4599754, at *5 & fn. 3.) Segal
was a putative class action against a Massachusetts “staffing”
company, commonly known as a temp agency. Segal alleged
Aquent hired individuals and “assign[ed] them out to companies
looking to hire short-term workers.” Segal alleged that Aquent’s
“recruiters misrepresented the number of hours [she] and her
fellow employees would receive from their assigned companies”
and that she “was required to ‘report to work’ [sic] via daily
teleconference, regardless of whether there was work or not.”
(Id. at *1.) Like the Zumiez decision, the Segal opinion contains
no analysis.
As this court has noted, in cases construing wage orders,
“[o]ur task is to determine the Industrial Welfare Commission’s
6
intent in promulgating the reporting time pay regulation. The
rules of statutory construction apply to the interpretation of
regulations.” (Price v. Starbucks Corp. (2011) 192 Cal. App. 4th
1136, 1145 (Price).) In my view, Casas―not Zumiez―correctly
determined what it means to “report for work.” I respectfully
disagree with the Zumiez court that the phrase “report for work”
is “facially unambiguous.” The Zumiez court saw “no need” to
consider the legislative history of the wage order. As Judge Wu
noted in Casas, that legislative history supports Tilly’s
interpretation of the wage order’s language.
The Division of Labor Standards Enforcement (DLSE), a
division of the Department of Industrial Relations, is responsible
for enforcing wage orders promulgated by the IWC. (Aguilar v.
Association for Retarded Citizens (1991) 234 Cal. App. 3d 21, 25.)
As recently as 2011, the DLSE stated that reporting time
penalties are due only when “the employer finds it necessary to
send the employee home because there is no work.” (DLSE,
Information Sheet: Wages et al. (Jan. 2011) [as of Feb. 4, 2019].) “While DLSE advice
letters are not subject to the rulemaking procedures of the
Administrative Procedure Act [citation], and thus have less force
than regulations, courts follow them when they are persuasive.”
(Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th
131, 143, citing Morillion v. Royal Packing Co. (2000) 22 Cal. 4th
575, 584 (Morillion).)
Ward argues in her brief that the preposition “for” “is
intended to convey purpose,” in contrast with the preposition
“to” which―Ward says―“is characterized by physical movement.”
Ward’s counsel conceded at oral argument that, if the wage order
used the phrase “report to work,” that would “suggest” a “physical
7
presence” requirement. But, counsel said (notwithstanding the
concession in his brief), Ward had not “analyzed that specific
term.” At least one federal court has interpreted the phrase
“report to work” to mean physically reporting. Culley v. Lincare
Inc. (E.D.Cal. 2017) 236 F. Supp. 3d 1184 (Culley) was a putative
class action. Plaintiff Christina Culley was a “healthcare
specialist.” She worked eight-hour shifts and was “also expected
to be on-call certain evenings and weekends to handle customer
issues that cropped up outside regular business hours.” (Id. at
p. 1187.) Lincare paid Culley for the time she actually worked on
these after-hours customer issues, but Culley contended she was
entitled to a full two hours’ reporting time pay. Lincare
contended Culley was entitled to this reporting time pay only
“when she was required to leave her house to perform after-hours
work,” not when she was able to “resolve the customer’s issue
over the telephone.” (Id. at p. 1189.)
The court concluded that, even though “the relevant
regulations are to be construed liberally in favor of the
employee,” Lincare “ha[d] the better of the argument.” The court
said, “While [Culley] continually emphasizes the regulation’s
applicability to when an employee is required to ‘work,’ she
wholly ignores the requirement that the employee report to
work.” (Culley, supra, 236 F.Supp.3d at p. 1190, original
emphasis.) The court held that the reporting time pay
requirement “applies only to occasions when [Culley] and class
members were required to physically report to work and not to
when they performed work via telephone.” (Ibid.)
Tens of millions of dollars in potential employer liability
should not turn on the difference between the prepositions “to”
and “for.” Indeed, leading treatises treat the two words as
8
interchangeable. (See, e.g., Simmons, Wage and Hour Manual
for Cal. Employers (21st ed. 2018) §§ 7.15, pp. 272–273,
8.13(b)(4), pp. 358–359 [using the terms “reporting-time pay,”
“reporting pay,” and “show-up pay” as interchangeable; “[u]nder
. . . the reporting-time pay requirements of the California Wage
Orders, an employee may be paid a minimum of a specified
number of hours’ pay . . . when, after reporting to work at his
scheduled starting time . . . he is not provided with the expected
amount of work”]; 1 Wilcox, Cal. Employment Law (2018)
Overview of Wage and Hour Laws, § 1.05[2][e], pp. 1-53−1-54
(Wilcox) [IWC wage orders cover a number of “facets of
employment,” including “[r]eporting time pay (minimum wages
payable to employee who reports to work as required, but is not
put to work or is furnished less than half the usual or scheduled
day’s work)”]; Advising Cal. Employers and Employees
(Cont.Ed.Bar 2018) Wage and Hour Laws, § 5.15, p. 5-32 (CEB
Advising California Employers) [reciting rule if employee “is
required to report for work and does report” under heading “Pay
for Reporting to Work”].)
Ward argues that even if, by “report for work,” the IWC
meant “physical attendance in the 1940s,” we should redefine and
expand that term because of “technological innovation.” That
“technological innovation,” Ward says, is the cellular telephone.
But there has been no technological change pertinent to proper
statutory interpretation in this case. Nothing turns on whether a
cord or a cell tower connects the phone. The notion that phones
were unfamiliar in the 1940s is ahistorical: spend some
enjoyable time listening to Glenn Miller’s 1940 hit PEnnsylvania
9
6-5000. (The Andrews Sisters’ rendition is delightful.)3 When
the Legislature defunded the IWC effective July 1, 2004,4 cellular
or mobile phones had been in use for some time. 5
It is undoubtedly true―as Judge Wu noted―that the
uncertainty of not knowing whether an employee will have to
work an on-call shift can constitute a significant hardship to that
employee. I also assume employers like Tilly’s have legitimate
business reasons for needing the flexibility to schedule employees
based on unexpected surges or lulls in customers, absences of
other employees due to illness or family emergencies, and the
like. It would be surprising if retailers maintain on-call policies
just to torture employees. Balancing these competing needs and
interests of employers and employees is a task for the
Legislature, not this court. The Legislature can give notice to all
interested parties, learn the social costs and benefits of various
alternatives, and engineer compromises acceptable to all. We
cannot.
Indeed, our Legislature considered predictive scheduling
legislation as recently as 2016. In 2015 and 2016, the California
3 The first automated dial exchanges in the Bell System were
deployed in 1919. (Engber, Who Made That?: Dial Tone (Jan. 10,
2014) The New York Times Magazine [as of
Feb. 4, 2019] (Engber article).)
4 Bearden v. U.S. Borax, Inc. (2006) 138 Cal. App. 4th 429,
434, fn. 2.
5 As of 2003, according to the U.S. Census Bureau, 94
percent of U.S. households had landlines and 63 percent had cell
phones. (Engber article, supra.)
10
Assembly took up the proposed “Fair Scheduling Act of 2015,”
Assembly Bill No. 357 (AB 357). AB 357 would have provided for
certain calculations of pay depending on how much notice the
employer gave the employee. (Assem. Bill No. 357 (2015–2016
Reg. Sess.) § 3(c)(1)–(3).) The California Senate considered a
similar bill, Senate Bill No. 878 (SB 878), the proposed “Reliable
Scheduling Act of 2016.” Like AB 357, SB 878 would have
calculated the amount of pay required based on the amount of
notice the employer gave the employee. (Sen. Bill No. 878 (2015–
2016 Reg. Sess.) § 1(e)(1)–(2).)
In 2014, the San Francisco Board of Supervisors enacted an
ordinance entitled, “Predictable Scheduling and Fair Treatment
for Formula Retail Employees Ordinance.” (San Francisco
Ordinance No. 241-14.) The ordinance applies to businesses that
employ 20 or more individuals in the city of San Francisco and
“have at least 20 retail establishments located worldwide.” (Id.,
§ 3300G.1.) The ordinance requires employers to post work
schedules at least two weeks in advance. (Id., § 3300G.4,
subd. (b).) An employer must pay an employee one hour of pay if
it changes the schedule 24 hours or more but fewer than seven
days in advance. (Id., § 3300G.4, subd. (c)(2)(A).) The ordinance
also provides for payments of two or four hours for changes or
cancellations to scheduled or on-call shifts depending on the
amount of notice and the shift’s length. (Id., § 3300G.4,
subd. (c)(1)(B), (C).) The ordinance contains a number of
exceptions, including the unexpected unavailability of another
employee when the employer did not receive at least seven days’
notice, the failure of another scheduled employee to show up,
employees’ trading of shifts, and mandatory overtime. (Id.,
§ 3300G.4, subd. (e).)
11
How are we―an appellate court limited to the narrow
record before us―to determine how much notice is enough to
avoid a violation of the wage order? What if employees are
required to call in eight hours in advance instead of two? How
about 12 hours? Twenty-four? Three days? A week? At oral
argument, Ward’s counsel seemed to offer a concession that a
requirement employees call in 24 hours in advance would be
legal. But a concession by one attorney in one case cannot bind
all of the plaintiffs’ lawyers across the state who might choose to
file similar lawsuits.
And what about a situation in which an on-call employee is
needed to come in to the store because another employee called in
sick, or has a family emergency, or just didn’t show up? Does the
rule we announce today apply to all retailers in our state of 40
million people, regardless of how many employees or locations it
has? Does it apply to almost every other industry in our state?
Fifteen of California’s 18 wage orders6―governing everything
from manufacturing to transportation to “amusement and
recreation” to “handling products after harvest”―contain the
identical phrase: to report for work.
The conclusion that the legislative intent of those who
wrote Wage Order No. 7-2001 was not to require payment to
employees who are required merely to call their employer to learn
whether they must “report for work” should―to quote Judge
Wu―end the discussion. As a court, our fundamental task in
interpreting this wage order “is ascertaining the drafters’ intent,
6 Gerard v. Orange Coast Memorial Medical Center (2018)
6 Cal.5th 443, 448; CEB Advising California Employers, supra,
§ 5.3, pp. 5-8–5-9.
12
not drawing up interpretations that promote the Court’s view of
good policy.” (Casas, supra, 2014 WL 12644922, at *5.) Any
needed fix is the responsibility of our Legislature.
C. On-call Shifts for Which the Employee Physically
Reports in Person But Is Sent Home After Her
Regular Four-hour Shift
Type one of the on-call shifts alleged in this case requires a
different analysis. As noted, in that version of Tilly’s practice,
“[e]mployees are scheduled for a regular shift as well as an on-
call shift later that same day. In such instances the employee is
required to physically show up for work at the time of her regular
shift and is told during her regular shift whether she will also be
required to work her on-call shift.” Ward seeks to sue on behalf
of a subclass of employees “who: (a) were scheduled for a regular
shift immediately followed by an on-call shift that same day;
(b) physically reported to work by working their regular shift;
and (c) were not paid the greater of two hours at their regular
rate of pay and one-half of their scheduled day’s work at their
regular rate of pay.”
So according to the allegations of Ward’s first amended
complaint, she did physically report to work but was sent home
after her regular shift, and not permitted to work her two-hour
add-on shift, without any compensation. The trial court’s order
sustaining Tilly’s demurrer did not discuss this version of the on-
call policy. Tilly’s counsel―who drafted the proposed order for
the court’s review―included several paragraphs regarding the on-
call-shift-following-scheduled-shift type of arrangement, but the
trial court marked them out. The trial court’s conclusion―“by
merely calling in to learn whether an employee will work a call-in
shift, Plaintiff and other employees do not report to [sic] work as
13
contemplated by Wage Order 7[-2001]”―by its terms does not
cover type one of Tilly’s on-call practice.
On appeal, Tilly’s never explains why this practice is not
unlawful under the wage order as a situation in which the
employee “is required to report for work and does report, but is
not put to work . . . .” Under most or all of the IWC’s wage
orders, “if an employee is required to report for work a second
time on any one workday and is furnished less than two hours of
work on the second reporting, the employee shall be paid for two
hours at the employee’s regular rate of pay.” (Wilcox, supra,
Overtime and Regulation, § 3.01[5][b], pp. 3-20−3-21.) Ward
alleges she did show up, in person, prepared to work an add-on
shift at the conclusion of her scheduled shift, but was sent home
and not permitted to work the add-on shift.
All that Tilly’s has to say on this subject appears at page 45
of its brief: “Under existing California law, employers are and
always have been free to extend employees’ shifts before they
end.” Tilly’s cites no authority for this assertion. When asked
about this at oral argument, Tilly’s counsel said only that
employers have “every right without any notice” to require
employees to stay for additional hours after the end of their
shifts, and that there is no statute or regulation prohibiting them
from doing so. But there is a difference between an employer
occasionally extending an employee’s workday so that she must
continue to work past the time her shift is scheduled to end, and
a routine practice of requiring employees to work 50 percent more
time―two hours added on to a four-hour shift―with at most a few
hours’ notice.
14
D. Retroactivity
Finally, in any event, our interpretation of the wage order’s
“report for work” language should be prospective only. Both
Ward and Tilly’s insist the language of the wage order is
absolutely clear. But their readings of this “absolutely clear”
language are 180 degrees apart. Two federal judges have read
the same three words to mean opposite things. Wage Order
No. 7-2001 has been on the books for more than 70 years.
Neither the Division of Labor Standards Enforcement nor the
Division of Industrial Welfare Enforcement ever has filed any
charge or initiated any action against an employer for an “on-call”
policy. The DLSE “is the state agency authorized to interpret
and enforce California’s labor laws.” (Price, supra, 192
Cal.App.4th at p. 1146, fn. 10.) As noted, the DLSE’s
interpretation of the wage order has been in accord with Tilly’s
reading of the language: that “report for work” means actually
showing up. “Although not binding on a court, the DLSE’s
construction is entitled to consideration and respect.” (Ibid.;
see also Morillion, supra, 22 Cal.4th at p. 584.) None of the three
leading treatises cited—all updated as of 2018—even mentions
the issue. Until August of 2017, when a federal district court in
Sacramento issued its unpublished opinion, no court ever had
held such an “on-call” policy to be unlawful.
E. Conclusion
Proper public policy about on-call shifts is complex.
Retailers face inevitable uncertainty: weather, traffic, inventory
gluts and shortages, and marketing responses all affect the
number of customers who may appear on a given day. Some
efficient businesses would like to staff with flexibility. This is
15
less an issue of management competence than it is of grappling
with market unpredictability.
The question is legislative. California is blessed with an
active, informed, engaged, attentive legislature that is in session
year-round. Our legislature can hold hearings to investigate the
dimensions of this statewide situation. All interested parties can
receive notice and an opportunity to be heard. Legislative
compromises can be proposed, debated, adjusted, and revisited.
This court can do none of that.
I would affirm the trial court’s order sustaining Tilly’s
demurrer to Ward’s first amended complaint except for the legal
theory set forth in paragraph 25(a) of that complaint. I would
have the parties bear their own respective costs on appeal.
EGERTON, J.
16