Herrera v. Zumiez, Inc., 953 F.3d 1063 (9th Cir. 2020)

Alexa Herrera filed this putative class action against her employer, alleging that Zumiez failed to provide reporting-time pay to employees at its California retail stores for their “Call-In” shifts. Employees scheduled for a Call-In shift were required to make themselves available to work during the shift and then call their manager 30 to 60 minutes before the shift or, if they worked a shift immediately before the Call-In shift, contact their manager at the end of that shift. At the time of the contact, the manager would then tell the employee whether s/he was required to work during the Call-In shift. If the employee was not required to work, Zumiez would not pay the employee. The employer filed a motion for judgment on the pleadings, which the district court denied.

In this appeal, the Ninth Circuit affirmed the denial of the employer’s motion based upon the California Court of Appeal’s recent ruling in Ward v. Tilly’s, Inc., 31 Cal. App. 5th 1167 (2019), holding that an employee need not physically report to work in order to be eligible for reporting-time pay. The Ninth Circuit also affirmed denial of the employer’s motion to dismiss the claim for “hours worked” associated with the time spent by employees (five to 15 minutes) calling in three to four times each week. The Court reversed the denial of the employer’s motion to dismiss the claim for indemnification for the telephone expenses incurred in calling in, but ordered that the plaintiff be allowed to amend the complaint to include more specific allegations about that. Cf. Cardinal Care Mgmt., LLC v. Afable, 2020 WL 1909143 (Cal. Ct. App. 2020) (trial court provided an adequate hearing on residential care facility’s financial ability to post an undertaking before it filed a de novo appeal from a $2.5 million award to employees, and also properly awarded attorneys’ fees to prevailing-party employees).