The 2016 lawsuit filed by former Zumiez sales associate Alexandra Bernal will dispel California Labor Code and Private Attorneys General Act claims. According to court documents, Bernal attested that she and other employees were told to call their managers sometimes hours before their shifts to determine whether they would be working that day. She argued that Zumiez failed to pay workers for canceled shifts or the time they spent on the phone with their managers. Bernal filed her first amended complaint late that year, adding Alexia Herrera. An appeal filed in 2020 alleges the following:
Zumiez, Inc. ("Zumiez") failed to pay employees at its California retail stores reporting time pay for "Call-In" shifts. As alleged, an employee scheduled for a Call-In shift must make herself available to work during the shift and then call her manager thirty minutes to one hour before the shift or, if she works a shift immediately before the Call-In shift, contact her manager at the end of that shift. At that time—either during the call or during the post-shift contact—the manager tells the employee whether she will be required to work during the Call-In shift. If the employee does not work, Zumiez does not pay the employee.
In her lawsuit, Herrara accused Zumiez of:
- failure to pay reporting time wages for Call-In shifts;
- failure to pay minimum wage;
- failure to keep required records;
- failure to provide accurate wage statements;
- failure to pay all earned wages upon separation from employment;
- failure to indemnify expenses for phone calls made for Call-In shifts;
- unfair business practices under California's Unfair Competition Law; and
- civil penalties pursuant to California's Private Attorneys General Act ("PAGA").
Reporting Time Pay
According to the California Department of Industrial Relations, reporting time pay constitutes wages and failure to pay all reporting time pay due at the time of employment termination may be the basis for waiting time penalties. One type of situation that accounts for reporting time pay is in Ward v. Tilly’s, Inc. (2019) 31 Cal.App.5th 1167, where employees telephone the store two hours prior to the start of a shift. The court held physical reporting was not required in order to come within the reporting time pay provision.
Other types of situations include:
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2. Presenting themselves for work by logging on to a computer remotely;
3. Appearing at a client’s job site;
4. Setting out on a trucking route.
In August 2017, Judge Bastian denied Zumiez's motion for judgment on the pleadings, saying making the phone calls was necessary to report for work. The company appealed and the Ninth Circuit ruled in March 2020 that making workers call in to find out if they have to work their shifts before they start triggers California's requirement that workers get "reporting time pay."