Does reporting for work require physically showing up at the place ready to work? The Ninth Circuit just confronted this issue. It decided that California’s Wage Order No. 7-2001 does not require an employee to report to work in person in order to qualify for reporting time pay. No physical presence is required. Although this case does not directly implicate the variety of remote and virtual work arrangements that have been instituted in light of the current public health crisis, it is natural to read this opinion with the news of the day in mind.
The basic facts are these. Alexia Herrera filed a putative class action against California retailer Zumiez Inc., alleging that it failed to compensate her for reporting time pay when she participated in the company’s mandatory call-in protocol. As alleged, that protocol requires that employees scheduled for call-in shifts must call the manager 30–60 minutes in advance of the shift (if the employee has not worked the previous shift) or communicate with the manager at the end of the previous shift (if the call-in shift follows another shift). The employee must be available to work the call-in shift if needed. Yet she alleges that if the manager does not need the employee for the call-in shift, the employee is not paid any reporting time pay. (The wage order says that “[e]ach 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” in an amount no less than two hours’ wages and no more than four hours’ wages.) Herrera’s complaint also included related claims for failure to pay minimum wage and for indemnification for phone call expenses related to participation in the call-in protocol.
Zumiez moved for judgment on the pleadings, which the district court denied. The court did agree to certify the issue pursuant to 28 U.S.C. § 1292(b). A petition for permission to appeal the interlocutory order was filed, and the Ninth Circuit granted the petition.
While the appeal was pending, the legal landscape changed. The California Court of Appeal (Second District) issued its decision in Ward v. Tilly’s, Inc. In a similar case, the state intermediate appellate court held (in a 2–1 decision) that reporting time pay must be paid. The Ward court looked beyond the plain language of the reporting time pay provision, deciding that “the text of Wage Order 7, alone, is not determinative of the question.” That court also addressed regulatory history, purpose, and public policy arguments. Its conclusion is reflected in the following holding: “[A]n employee need not necessarily physically appear at the workplace to ‘report for work.’ Instead, ‘reporting for work’ within the meaning of the wage order is best understood as presenting oneself as ordered. ‘Report for work,’ in other words … 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.”
The Ninth Circuit then determined, in light of finding no “persuasive data” that the California Supreme Court would decide the case differently, that it must follow the Ward court’s lead. It therefore affirmed the district court’s denial of the motion for judgment on the pleadings (except for the indemnification claim, which it stated might be amended to include more specific allegations).
The case is interesting in its own right, but there are some procedural aspects to the case that make it especially notable for practitioners.
First, the Ninth Circuit rejected the request by Zumiez that it certify the question to the California Supreme Court. The panel explained that (1) the state supreme court denied review in the Ward case; (2) there are no conflicting California Courts of Appeal decisions; and (3) “we have no reason to doubt that the California Supreme Court would reach an outcome consistent with Ward.”
Second, the Ninth Circuit panel decided to publish this decision as a precedential opinion.
Taken together, these two facts (no certification and publication) create a potential dilemma for practitioners in the future. Although the federal panel’s decision will not bind California state courts, it will bind federal district courts in the Ninth Circuit. Thus, Judge Nelson concurred but suggested that “the more prudent course would be not to publish an opinion in this case.” He explained his concern as follows:
The problem, I fear, is that our decision to publish will preclude California courts from telling us if we got it wrong. This published opinion may incentivize future plaintiffs to bring their state law cases in federal court, where the outcome is likely to be more favorable and more certain. This incentive, in turn, could prevent cases from percolating in the California state courts, foreclosing the state courts from weighing in on the issue. If California state courts are deprived the opportunity to provide “subsequent indication [to us] … that our interpretation [of California law] was incorrect,” cooperative judicial federalism is undermined.
At a minimum, Judge Nelson’s concerns raise a question whether defense counsel would want to remove the next one of these cases, if any, a plaintiff might choose to file in state court. While these kinds of nuanced tactical issues might escape consideration at the time of deciding whether to remove a class action, a practitioner might do well to take them into account in these circumstances.
Herrera v. Zumiez, Inc., No. 18-15135 (9th Cir. Mar. 19, 2020).