Wage and Hour Law — Reporting Time Pay

In Aleman v. Airtouch Cellular, 2011 DJDAR 18193 (December 21, 2011), the Court of Appeal for the Second District, Division Two, provides clarity in the area of wage and hour law on the issue of reporting time pay required under the Industrial Welfare Commission (“IWC”) Wage Orders. Contained in Section 5(A) of each IWC Wage Order, the Reporting Time Pay requirement is as follows:

“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 of 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.”

According to California’s Division of Labor Standards Enforcement (“DLSE”), the “reporting time premium requirement is designed to discourage employers from having employees report unless there is work available at the time of the reporting and is further designed to reimburse employees for expenses incurred in such situations.” (DLSE Enforcement Policies and Interpretations Manual, Section, hereinafter the “Manual”). Thus, where an employee regularly scheduled to work eight hour shifts reports for work on a scheduled work day and is sent home due to lack of work after one and a half (1.5) hours, the employee is entitled to a total of four (4) hours of pay (1.5 for actual hours worked and 2.5 for reporting time pay).

But what happens when this same 8-hour per day employee is required to attend a mandatory meeting on a Saturday, a non-scheduled workday? The DLSE Manual provides the following example:

“Required meeting is scheduled for a day when the worker is not usually scheduled to work. The employer tells all of the workers that attendance at the meeting is mandatory and a one- or two-hour shift is “scheduled” for this meeting. For those workers not “regularly scheduled” to work, the employee must be paid at least one-half of that employee’s usual or scheduled day’s work.” (DLSE Manual, Section 45.1.4).”

But what is the “usual or schedule day’s work” in this instance? Is the employer required to pay the employee based on the employee’s regular 8-hour/day schedule, or a total of four hours if the meeting last less than half of the employee’s regularly scheduled 8 hour shift? If so, is such an interpretation consistent with the purpose of the reporting time pay provision, which is to discourage employers from requiring employees to report for work when the expected amount of work is not available?

According to the court in the Airtouch case, the answer to both questions is no. To make this crystal clear, the court provided the following hypothetical:

“If an employee’s only scheduled work for the day is a mandatory meeting of one and a half hours, and the employee works a total of one hour because the meeting ends a half an hour early, is the employer required to pay reporting time pay pursuant to subdivision 5(A) [of the Wage Orders] in addition to the one hour of wages?”

According to the Airtouch decision, where the meeting is scheduled in advance (in this case at least four (4) days) and for a fixed amount of time, the meeting constitutes a “scheduled days work” for purposes of determining the employer’s reporting time pay obligation. Because the employee in this hypothetical worked more than half of the scheduled day’s work by attending the meeting for one hour, the court held that the employee was not entitled to reporting time pay under the unambiguous language of Section 5(A). As a result, the employee receives one hour of pay for time spent attending the meeting and no reporting time pay.

Finally, addressing the language from the DLSE Manual quoted above, the court held that to the extent that the DLSE Manual suggests a different conclusion, such an interpretation is inconsistent with the language of the Wage Order and therefore unenforceable:

“Here, to the extent that the DLSE would conclude that attendance at a scheduled mandatory meeting does not constitute a “scheduled day’s work,” such a conclusion would be inconsistent with the language of subdivision 5(A). In contrast to the nonbinding nature of DLSE determinations, courts show the IWC’s wage orders “extraordinary deference booth in upholding their validity and in enforcing their specific terms.” [Citations]. The specific terms of subdivision 5(A) do not reference “meetings,” much less distinguish “scheduled meetings” from “scheduled work.” The DLSE is not authorized to write additional terms into the wage order or promote an interpretation inconsistent with its actual terms.”

The Airtouch decision clarifies wage andf hour law and the reporting time pay required for mandatory meetings on non-scheduled workdays. Where the meetings are scheduled in advance (four days in this case) and for a fixed duration, the reporting time pay obligation, if any, will be based on the scheduled length of the meeting. And where the meeting lasts at least one-half of its scheduled duration, there is no reporting time pay obligation at all.

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