There are many times when employees are sent home due to lack of work or an Act of God. While reporting time pay is not a prevailing wage regulation, it is addressed in the Industrial Welfare Commission Orders 1-16, Section 5. These Wage Orders require that an employee be paid for certain unworked but regularly scheduled time at their regular rate of pay.
The basic rules of reporting time pay are as follows:
- Each workday an employee is required to report to work, but is not put to work or is furnished with less than half of his or her usual or scheduled day’s work, the employee must be paid for half the usual or scheduled day’s work, but in no event for less than two hours nor more than four hours, at his or her regular rate of pay.
- If an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.
Exceptions to reporting time pay rules:
There are a number of instances when an employee reports to work as scheduled and is sent home or works less than his or her regular shift. An employee is not entitled to reporting time pay in the following situations:
- When the employer’s operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.
- When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system.
- When the interruption of work is caused by an Act of God or other cause not within the employer’s control. The Division of Labor Standards Enforcement (DLSE) recently concluded that rain or other inclement weather that makes it impossible or unsafe to work falls into this category. So, if workers are sent home and relieved of all duty because of rain or other Act of God, there is no obligation to pay reporting time pay. However, workers must be paid if they are required to stay on site, even if they provide no service and do no “work.” If employees are permitted to leave the work site while waiting out a weather delay, but are restricted in their use of their own time because he or she may be required to return to work, the employees may be entitled to their regular rate of pay.
- If the employee is not fit to work.
- If the employee has not reported to work on time and is fired or sent home as a disciplinary action. Employers should note that sending an employee home early (worked less than ½ his regular shift) based on poor performance probably does not qualify for this exception.
- If an unexpected or unusual occurrence during off hours makes it impossible for the employer to open for business and the employer has made every reasonable effort to notify employees not to report for work.
Employer Obligations for reporting time pay
- Reporting time pay constitutes wages. Accordingly, employers that fail to pay proper reporting time pay may be exposed to waiting time penalties for failure to pay wages upon termination.
- Reporting time pay is not counted for the purposes of calculating overtime. If an employee is entitled to 4 hours of reporting time pay and 8 hours of pay for actual work performed, the employee is entitled to 12 hours of pay at his or her regular rate of pay.
Enforcement of reporting time pay
As an employer, it is your duty to pay your employees reporting time pay if it is owed to them. If you neglect to pay the employee their reporting time pay, the employee may file a wage claim with the DLSE or file a lawsuit in court. If the employee files a claim, the DLSE will assign a Deputy Labor Commissioner to the case who will investigate the claim.
The Deputy Labor Commissioner will then refer the parties to a conference, hold a hearing or dismiss the claim entirely. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.
At a hearing both parties will testify under oath regarding the claim and have an opportunity to present evidence. After hearing testimony and reviewing evidence, the Labor Commissioner will then issue an Order, Decision, or Award (ODA). Either party may appeal the ODA in a civil court; both parties will have the opportunity at that trial to present evidence and witnesses.
It is important for employers to respond to notices from the DLSE regarding claims in order to protect their rights. For example, if an ODA is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the DLSE will have the court enter the ODA as a judgment against the employer.
An employer may not discriminate or retaliate against an employee who makes a wage claim in any manner whatsoever. The employee’s recourse, should discrimination or retaliation occur, is to file a complaint with the Labor Commissioner’s Office or to file a lawsuit.