Herrera v. Zumiez, Inc., No. 18-15135 (9th Cir. 2020)
Annotate this Case
Plaintiff filed a putative class action alleging that Zumiez failed to pay employees at its California retail stores reporting time pay for "Call-In" shifts. The district court denied Zumiez's motion for judgment on the pleadings. While this appeal was pending, the California Court of Appeal decided Ward v. Tilly's, Inc., 243 Cal. Rptr. 3d 461 (Ct. App. 2019), review denied (May 15, 2019), which held that reporting time pay must be paid in a closely analogous situation, an outcome consistent with the district court's denial of Zumiez's motion for judgment on the pleadings here.
The Ninth Circuit followed Ward's controlling interpretation of the law and affirmed the district court's judgment with respect to the reporting time pay claim. The panel also affirmed the district court's judgment as to the failure-to-pay-minimum-wage claim and the related remaining claims. In this case, the allegations were sufficient to defeat Zumiez's motion for judgment on the pleadings. The panel reversed as to plaintiff's claim for indemnification and remanded for the district court to allow plaintiff leave to amend the complaint to include more specific allegations. The panel remanded for further proceedings.
Court Description: California Employment Law The panel affirmed in part, and reversed in part, the district court’s decision in a putative class action alleging that Zumiez, Inc. failed to pay employees at its California retail stores reporting time pay for “Call-In” shifts. While this appeal was pending, the California Court of Appeal decided Ward v. Tilly’s, Inc., 243 Cal. Rptr. 3d 461 (Ct. App. 2019), review denied (May 15, 2019), which held that reporting time pay must be paid in a closely analogous situation, an outcome consistent with the district court’s denial of Zumiez’s motion for judgment on the pleadings here. The panel followed Ward’s controlling interpretation of state law, and affirmed the district court with respect to the reporting time pay claim. Following Ward, the panel concluded that, under subsection (5)(A) of California’s Wage Order 7, a requirement that employees call their manager thirty minutes to one hour before a scheduled shift constitutes “reporting for work.” The panel held that the district court correctly determined that the plaintiff stated a claim for reporting time pay when she alleged that she was scheduled for a shift, expected to work, incurred costs or arranged her other obligations and planned activities to make herself available, and then was not permitted to work. HERRERA V. ZUMIEZ, INC. 3 Plaintiff also asserted an “hours worked” minimum wage claim for unpaid wages for the time that employees spent calling their managers for Call-In shifts. Construing the facts alleged in the complaint as true and in the light most favorable to the non-moving party, the panel held that plaintiff alleged a claim for unpaid wages where plaintiff alleged that she and other employees were required to call their managers thirty minutes to one hour before their Call- In shifts, alleged that these calls were required three to four times per week and lasted five to fifteen minutes, and, critically, alleged that employees could be disciplined for failing to comply with the Call-In shift policy. The panel concluded that the allegations pled were sufficient to defeat Zumiez’s motion for judgment on the pleadings. Plaintiff and putative class members sought indemnification for phone expenses incurred in calling Zumiez before Call-In shifts. The panel held that under California law, to state a claim for reimbursement of phone expenses turns on whether it was necessary that the employees make calls and do so with phones that were not provided by the company. The panel further held that plaintiff failed to include specific, non-conclusory facts about how she made the calls or what costs she incurred. Accordingly, the panel reversed the district court’s denial of judgment on the pleadings as to the indemnification claim, and remanded for the district court to allow plaintiff leave to amend the complaint to include more specific allegations. Because plaintiff’s remaining claims were derivative of plaintiff’s reporting time pay, minimum wage, and indemnification claims, the panel affirmed the denial of the motion for judgment on the pleadings on the remaining claims, to the extent the district court determined they related to the reporting time pay and minimum wage claims. 4 HERRERA V. ZUMIEZ, INC. Judge Berzon concurred, and wrote separately to respond to Judge R. Nelson’s concurrence. She wrote that where, as here, the panel is following the only state appellate opinion on point and there was no reason to think the state Supreme Court, which denied review of that appellate question, would disagree, then certifying the issue was unwise. She concluded that no issue of federalism was at stake here that was not inherent in the existence of diversity jurisdiction. Judge R. Nelson concurred. He agreed that the decision to follow the decision in Ward accorded with this sound constitutional principle, but he wrote further that by publishing without first seeking the views of the California Supreme Court, the panel risked undermining cooperative judicial federalism.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.