Fred Smellie owned and ran Smellie’s Fish and Tacos, a small fast food restaurant that especially catered to Catholics during the Lenten season.

Fred could create a mean ceviche or a tasty tilapia burrito, but he was hopelessly unorganized. He often told his employees, Mary, Bill and Joaquin, to report at 10:30 a.m., but then sent them home by noon if business was slow. If a lot of customers showed up, then the three would work until 6:30.

While Fred may be disorganized, he was still an informed employer. He knew that if he told his employees to show up for an eight hour shift that lasts just 90 minutes, he owes them a total of four hours of wages. This is sometimes called “reporting time pay.”

But then something new came up. He had just obtained a massive shipment of shrimp. He got a great recipe for Shrimp Louie and needed to teach Bill how to prepare it. He told Bill in an email to come in on Saturday (normally his day off) for a one-to-two-hour training session.

Bill, being a quick learner and an avid user of an iPhone, filmed Fred’s demonstration of how to make the new salad.

Unfortunately for Bill, use of the iPhone cut down the session from about 70 minutes to just 35, and that’s all that Fred paid him.

This, of course, ticked Bill off. He thought he was owed four hours of pay, or at least two hours because that’s how long Fred had said the session would last. Bill was so incensed that he filed a complaint with the labor commissioner.

At the Labor Commission hearing, Bill laid out his case.

“My shifts are normally eight hours long, and when I work fewer than four hours, Fred always pays me for a total of four,”
Bill said. “But this time, he called me in on my day off, trained me for only 35 minutes, and then sent me home. He only paid me for 35 minutes’ worth of work. If I’d known he was going to do that, I would have insisted on doing the training on one of my regular days.”

When given his turn, Fred said, “Most of what Bill said is correct. I want to add that, a week before the Saturday training session, I emailed Bill (and also talked to him) to say that I would need him for only one or two hours on Saturday. So, Bill knew that the time on Saturday might be only one hour.”

How do you think the Labor Commissioner should rule?

If you sided with Bill, you need to go back to law school and bone up on some recent decisions in this area.

In late December, the Court of Appeal in Aleman v. AirTouch Cellular directly addressed this question, saying, “If an employee’s only scheduled work for the day is a mandatory meeting of 90 minutes, and the employee works a total of one hour because the meeting ends a half-hour early, is the employer required to pay reporting time pay pursuant to subdivision 5(A) of Wage Order 4 in addition to the one hour of wages? 

The answer to this question is no, because the employee was furnished work for more than half the scheduled time. The employee would be entitled to receive one hour of wages for the actual time worked, but would not be entitled to receive additional compensation as reporting time pay.”

So, a word to the wise employer: If you’re planning on calling in an employee to work a short shift on a day he or she doesn’t normally work, you should notify the employee in writing (a week in advance should be sufficient notice) that you will need him or her to work on such and such day for an estimated number of hours.

Make sure your estimate is realistic. Confirm with your employee that he or she got the email. Then, make sure to pay the employee correctly.

If you scheduled the shift to be three hours and he or she only worked two, then pay the employee two hours. If he or she worked one, then pay him or her for 90 minutes.

Keep a hard copy of your email notice, the time record for the day worked, and the pay record for how many hours were paid. Failure to do this could result in labor law problems stinkier than Fred’s fish.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.