Wage theft from California workers isn’t always about paying less than minimum wage. Sometimes, it’s failing to pay wages for expected duties the company doesn’t consider “work.” We saw this with factory workers required to spend upwards of 20 minutes daily donning and doffing their uniforms on site. More recently, we saw it with Starbucks in the six-year battle, ending in the California Supreme Court, over failure to pay for unpaid tasks like locking up after closing – something that only takes an extra 5-to-10 minutes daily, but multiplied across days, weeks, months and years and many thousands of workers adds up to significant skimming off the top.
Other recent California wage theft cases focused on so-called “call-in shifts” or “on-call work.” This is when workers are required to clear their schedules in the anticipation they might be needed if it’s a hectic night. However, in some cases, workers weren’t being paid despite re-arranging their schedules to adjust for the possibility.
California labor law separates this time into two different categories: Standby/ waiting time and response/ reporting time. The case law that established all this started with the U.S. Supreme Court’s 1944 case of Armour & Co. v. Wantock, though California has adopted several provisions and tests of applicability on its own.
Standby/ waiting time is time the employee is required to remain at an employer’s place of business and respond to emergency calls. Workers are required to be paid for all of this time, though the rate can change, particularly if the standby time is “uncontrolled” by the employer and is otherwise free time. Response and reporting time is that wherein employee is required to respond to a call or text – that has to be paid also, with the worker responsible for keeping track. As Los Angeles wage theft attorneys can explain, only de minimus work (literally one or two minutes) isn’t compensable. For every day the worker is required to report to work and does report to work but isn’t paid, employees are paid half the usual wage for that shift – but in no event for less than two hours or more than four hours. If a worker is required to report back to work on any given day and only works for two hours are less, they are to be paid at their regular pay rate (not less than minimum wage) for those two hours.
Among the recent cases filed:
A class-action lawsuit against Victoria’s Secret last year, plaintiffs alleged they were forced to “mold their lives around the possibility they might have a chance to work more hours…” ultimately preventing them from making plans or even working a second job. This was done via the “on-call” shift. This is where an employer might over-schedule a shift in case the store is busier than anticipated. The on-call worker calls ahead just prior to the start of the shift to determine if he or she is needed. If not, they don’t come in – and they aren’t paid. If they are needed and can’t make it, they might face termination. Victoria’s Secret ultimately settled for $12 million (plaintiffs had asked for $37 million). Because it was settled, no precedent was set, but Los Angeles wage theft attorneys know it serves as a warning to other companies facing similar litigation.
In July, another retailer, Abercrombie & Fitch Trading Co., agreed to a more than $9.5 million settlement to 61,500 employees over much the same thing. Employees were required to call into the business before the shift to see if they should report to work, but were sometimes told not to bother. Workers argued the call reported as counting to work. That case, Jones v. Abercrombie & Fitch Trading Co., also was settled out-of-court.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Abercrombie to Pay $9.6M to Settle Employee Pay Lawsuit, July 17, 2018, By Jon Steingart, Bloomberg News
More Blog Entries:
Failure to Follow California WARN Law in Layoffs Can Lead to Liability, Nov. 6, 2018, Los Angeles Wage and Hour Theft Attorney Blog