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Reporting Time Pay and Split Shifts

A recent decision from the Second District Court of Appeal in Los Angeles discusses two requirements found in the the California wage orders — minimum pay for those who show up to work but are sent home early, and extra pay for those who work a split shift. Aleman v. Airtouch Cellular, Case No. B231142 (Dec. 21, 2011).

The reporting time pay provision of the wage orders states: “(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 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.” 2001 Wage Order, Section 7.

One of the plaintiffs in Aleman sought reporting time pay when he was required to attend regularly scheduled weekend “store meetings” once or twice a month, each of which lasted less than two hours. The Court of Appeal ruled that he was not entitled to two hours’ of pay because the meetings were “scheduled.” and he worked more than half the scheduled time. “There is only one reasonable interpretation of subdivision 5(A) as it pertains to scheduled work—when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.” It distinguished an earlier case where an employee was called into work for a talk that lasted 45 seconds, and then fired. Price v. Starbucks Corp., 192 Cal.App.4th 1136 (2011). Because that talk was not “scheduled,” the employee was entitled to two hours of pay.

The wage orders define split shift as “a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods.” 2001 Wage Order, Section 2(Q). Under Section 4(C), “[w]hen an employee works a split shift, one (1) hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment.” The Court of Appeal ruled that an employee was only entitled to a split shift premium of the total compensation for the work periods plus an hour was less than the minimum wage. A federal district court had earlier come to the same conclusion. Galvez v. Federal Express, Inc. (N.D. Cal. Apr. 28, 2011).