work by telephone instead of physically appearing at a record mordor location now in addressing this issue there are two points i would think merit distal discussion as was the largest protecting employees and in a manner that facilitates their protective intents of beginning with the key phrase to reporting regulation report for work if we look just at the word reports as our briefing discuss there are several prominent dictionary definitions that define the word report in a manner that allows for alternative meanings one suggesting physical attendance in one not suggesting physical attendance one suggesting an action of purpose or intent is your argument that winch when the when the employee is required to answer the phone or to be available to answer the phone that hold more wherever they might be with their cell phone that that's they're they're at work or they're reporting for work or work well they're not answering their phone so employees between secret employees are subject to scheduling policy you have a more traditional scheduling policy you're set to work say from munich for you physically show up you work then they have call in shifts will say it's from twelve to four again so instead of physically showing up at twelve the employee has to call the employer then two hours of the schedule shift and tell them i'm ready to work the schedule anytime within that two hour period or at the two hour or more that the way it's actually phrased in the complaint it says at least two hours but the record shows during oral argument that we explained that was that was there was a typo what we meant to say was no more than two hours so there is some discrepancy there as i understand the policy it's no more than two hours but again though there is a discrepancy with the pleading on that was brought out in the well are you the transcript so the idea is these call in show you have to call with them to oh yes you're on now the idea of these shifts are there mandatory and basically allegations in our complaints and since this comes from a rule twelve motion there to be accepted as true the calling policy is mandatory employees are instructed to treat these call in shifts as actual scheduled work time they can be disciplined for not complying with the call and scheduling policy just the same as they can be disciplined for not complying with any regular scheduling policy so these employees just like a normal shift are required to make the scheduled work time available to their employees the colon policy as a practical matter it it's really a distinction without a difference in terms of the effect on employees you can't schedule work with another employer during the time you're scheduled for a call inches you have to incur costs just so you rip at the times you report for a call and shift for example child care costs are elder care cos it's not as though  someone can arrange for a babysitter on under two hours notice or even care for a sick or elderly person they're responsible for so the idea of these shifts are almost addressing an issue of form over substance there's really no practical the station between the policies in terms of the mandatory availability the effect on employees the only distinction is that you're substituting a requirement that employees report for work by walking through an entrance and have them call their employer now as of as it applies to california reporting time law this calling policy fits within the plain meaning of the phrase when an employer is required to report for work there's no dispute that they were acquired based on the allegations in the complaint the word report is defined by ordinary dictionaries does not require definition of physical movement for example oxford dictionary defines it as to present oneself as having arrived at a particular place or as ready to context which is largely what the district court did here we can look beyond that and look at the freight word work and how california treats that word under california law under a million employees are deemed to be working whenever they're operating under the employer's control now again there's no dispute based on the allegations of the complaint that when employees comply with the call and policy they are operating under the employer's the tory secrets control we can look at the phrase as a whole as we explained in our brief the phrase report for work in the phrase is critical around the proposition for which demonstrates an action of purpose and of intense not movements and the i w c they could have chosen to make this reporting requirement crystal clear that pivots around a physical attendance that physical attendance is the linchpin of the analysis they could have said report to work because to suggest movement of a person or thing from one place to another they could have made it even clearer and said reports to the workplace but they didn't they said report for work now also in the plain meaning analysis and getting aside just from the phrase report for work california law requires that we construe the statute as a whole if we look at reporting times remedy provided by reporting time law is house of the usual or scheduled day shifts so this is not a flat remedy this is a variable remedy that directly corresponds to the amount of time the employee made and then the employer either you know will put him on hold or they ask the call back or they'll just say yes or will say no but they're reporting for work they're expressing their willingness availability and intent to work a schedule of mandatory work shifts so mysterious it in the briefs that sort of at the end of the br we understand that there are two competing considerations one this court is supposed to look to the california priem court and appellate court decisions and try and predict how the california supreme court will and at the same time if it does involve issues of important public policy have never been specifically addressed by the courts the court has a discretion to certify it's in california supreme court we believe that it did meet that criteria we felt obligated to point that out to the court but we are here ready to argue this before the stand as well now and they're not actually raises an interesting point that i would like to address in victoria secret's answering brief it's an argument effectively that we're pursuing the wrong claim that we should be repressing reporting time we should be pursuing on call time i just don't see the parallels between the circumstances when you're on call and when you're reporting for work they just don't match but one of the arguments that they had offered was that it's incredible if we could have just placed these employees on call and said of having them report for work we could just place among call the whole time i strongly disagree with that i think california's on call law would absolutely require if they had this hypothetical policy where instead of calling in before the show if they just made them available for six or eight hours a day i think california law absolutely would say you're required to pay standby pay and one of the actually the main reasons for that is highlighted in victoria's secret brief one of the factors they cited was whether or not there is a historical use of on call time in a particular industry of course there's no use of on call time in the retail industry and that's because california law doesn't allow on call time to apply to industries that don't need it as a business necessity and in fact that the department of labor standards and force an opinion letter that was cited in the tory secret briefing specifically provides that there has to be a reasonable and long standing industry practice which clearly indicates that workers in the affected classifications are expected to be on call and that's a private the employer of the right to require uncompensated on call status of the workers in this category well have a serious negative impact on the employer's business that cannot possibly be said for an employer for your average everyday retailer they've been not using on call policy since there were retailers there is no historical precedence and there is no necessity if that was the case then every employer would do it but that's not how all call law works it's not a rights it's a privilege based on business assessing and that's why i like the mendiola case all the on call cases that we see involve the same classes of employees firemen nurses paramedics security guards police officers there is a reason there is a necessity for some people to be on call among those classes of necessities or not retail  your client mean i believe my client may make you know eight nine ten bucks an hour somewhere in there maybe like a little couple ticks above the minimum wage i don't know probably gets commissions to i don't i don't think she does not i could be wrong on that  as i understand it no as you get medical care no good afternoon your honour's i am beth gun and i represent victoria's secret stores l l c appellant in this matter and i'd like to start by addressing something very important in this case which is that this is an interlocutory appeal that is appealing a ruling on a motion to dismiss and it is really focused on the allegations that were presented in the first amended complain a lot of what we just heard from appellants counsel really strays very far from the issues as they were framed in the first amended complaint and the issues that were decided by the district court that it works ok so typically the column scheduling practice works in a couple of different ways but predominantly it is a scheduling practice where employees are scheduled both for regular shifts and then some of their shifts are shifts that they may or may not be called into work and they know ahead of time that these shifts are things that they might not be called in for so in practice they're supposed to call in at least two hours before the shift which is what the first amended complaint alleges and sometimes they call in more than two hours before the ship sometimes they're told before the night before or the day before or a week before that they're that's the predominant reason and i mean an employee could call in and say i'm not really feeling up to it today can you call somebody out can call and somebody else instead and they could probably do that so these are part time employees typically for these call in shifts  in in reality although this isn't in the first amended complaint what happens is that employees fill out a form when they start working there that says when they're available and they get schedule during the times that they tell the tory secret there they're available so in so far as the policy consideration is concerned as to whether or not this infringes on the employees time they're only scheduled for calling shows on times when paula i think there's a benefit to both sides employees at the the reporting time statute makes it very clear i think that employees get paid for reporting to the site or the place where the work is to be conducted at the time that the work is supposed to happen and if an employee is told two hours in advance that they don't need to do that then that's a net gain to the employee as well as the employe so the purpose of reporting that net gain it's a net gain because they don't have to actually show up at the work site the when you look at that legislative history here which i think is really the thing that we need to focus on what we're talking  the part time employee there to part of their typical part time employees who want to catch a couple shifts here and there they want to be able to have the flexibility to say i'm only going to work for three hours i do other i understand the appeal of putting in place a different process for scheduling but the question at issue here is what did the industrial wage commission it what did they intend when they put together this to the rule regarding reporting time ok that rule was adopted in one nine hundred forty two and all of the case law tells us that what we have to do is we have that's actually very important through which commission what it's the industrial wage commission is an entity a role making agency that was empowered by the california legislature through the labor and that is a commission that is supposed to go through the same types of rulemaking procedures that any administrative agency would go through and what was the rule the rule in one nine hundred forty two the intent orders only applied to women and minors so on fortunately you would have been covered what women and minors women and children and only minor a minor that's what i'm saying it would have applied to you but the purpose of the wage orders are are to inform employers of what the requirements are that they need to comply with and throughout the history of the i w c they have interpreted the term report to mean showing up at the place where the work needs to be done at the time that the work needs to be done if not entirely clear well i think it is clear and i can tell you i can do a round of for you  we look at the first time it comes up and it didn't come up in this industry which is the mercantile industry the first time it came up it referred to the problem of allowing workers to come into the plant when there was little or no work the come in language implies that somebody is actually going to the plant going to the physical place of employment in one thousand nine hundred forty three the idea of u c meeting minutes state that the purpose is to compensate the employee for transportation costs and loss of time and that is clearly meant to encompass the time that an employee's fans getting to the workplace in one nine three again when the wage board match to discuss the mercantile industry they assume there's language that that indicates that they assumed that report for work entails transportation in  forty seven the same assumption was made reporting for work entailed transportation the only reason transportation would be mentioned there is if there was an assumption that somebody had to go from one place to another place meaning the work place in one nine hundred sixty one the there was a statement of the i w c in another industry that described a substantial problem that was to be addressed by this provision of calling employees to the fields for six there was a proposal to expand the reporting time provision that was rejected at that time the one of the wage boards there was an area supervisor who decided who stated and i quote that the intent of the commission was to ensure that the employee receive the minimum amount of pay t that was then i'm sorry that was in one thousand sixty seven that was then incorporated into the one nine hundred sixty eight wage order that's the last time that the i w c altered the language of the wage order and expressed any sort of not get a job like that's the same thing going on and and i understand that your honor but the question is does the existing provision of the wage order cover the circumstance that we have here and the answer is it doesn't and the fact is what the palace want to do is they want to allow enlarge the scope of the current provision to accommodate for a policy reason that's compelling is there but that was never never bet it pieces because you guys are removing everything to the federal courts and you're asking us to decide these very important state law questions which are very important i want to bring in the just not victoria secret's  shouldn't we at least ask them to consider taking this case and to answer the question that's been problems well my understanding because i'm mangling you know they wa my understanding of the relevant case law is that there's a presumption against certifying you know there's no presumption in the california supreme court certification statute it's limited to important questions and this in my view it seems to me like a very important question that affects a lot of people well but the statute if this is actually a question and this of other statutory interpretation affects thousands of people and say maybe a hundred thousand well because bit within the rubric of reporting time and it doesn't take a lot of sacha tory construction to determine that this is trying to say we're going around work the shift and in paragraph forty six of the complaint they say that employees called to determine if he or she needs to report to work for the hours encompassed by the call and shi as a matter of actual fact that's incorrect but i mean they might be talked to but they there's no i there's nowhere that it would support that they were going to be terminated if it were me could they call in fifteen minutes before the  the ship they could not call in at all and they would be talked to probably and whatever progress not my question could they call in fifteen minutes before the start of sure and that's ok you know they would probably be talked to and they would be asked what happened what happen colleen two hours they're supposed to well it depends they're supposed to call in at least two hours before the start of the scheduled shims but there are lots of circumstances where a manager might call them might tell them ahead of time so in in practice the scheduling policy is sort of administered on a store level and it could change depending i mean there are employees who would be scheduled for the first shift of the day those people are calling in two hours before that shift those people would be they would know the day ahead of time to call in the day before and say do i have to report to more five o'clock a lot of times they they could yet again when they find it when they e but getting there was one point the council raised and i agree with her completely the legislative purpose the purpose of california reporting ty law is very important to the court's termination and if we want to look at the encourage proper notice and scheduling practices and to compensate employees who report for work and are denied the opportunity to earn wages that asked then that raises the question what's the improper scheduling practices that need to be remedied it's employer over scheduling that you can trace that directly back to the comments of former chairman kid back in one nine hundred forty s you can look to opinion letters from the attorney general who explains the purpose of the remedy is that when an employee makes herself available to an employer she is denied the opportunity to earn a living wage she is compensated for at least portion of the time the purpose of acquiring time law is combat ing over scheduling and compensating employees for the variety of sacrifices they california reporting time was first created the public housekeeping industry was asked whether resident employees individuals who by definition incur no transportation costs which should be entitled to california reporting time law even the employer representative in that situation did not dispute that they are entitled to reporting time pay they simply asked for a reduced remedy because of the many costs in harm's that happen to employees from employer over scheduling for resident police transportation costs are not among them the commissioner rejected his recommendation and held that california reporting time all applies equally to employees who her no transportation cost thank you thank you council we appreciate