denying judgment on the pleadings because plaintiffs complaint fails to state any claim as a matter of law plaintiff's principal claim is for so called reporting time pay for instances in which she allegedly policy called thirty to sixty minutes in advance of her shift to check whether she needed to show up for work and was told not to well that's not exactly a correct depiction of what was going on my understanding is that at least according to a complaint there this employer has scheduled show up shifts and scheduled call in shifts  and she was not just idly calling in just see if she needed to show up but she was required to call an at a particular time and which was quite shortly before she was supposed to be at  an hour or thirty minutes at least thirty minutes before is that your understanding of the complaint that that is my understanding the complaint i don't know exactly what that means but it certainly suggests that there was flexibility between thirty to sixty minutes in advance and didn't have to be a percent sublets go forward with the actual story ok which is not that she was just i have the calling up to find out whether she happened to be scheduled she was scheduled for this special kind of call and shift and she was required to call and at a particular time because she wasn't required to show up right she would there was no schedule saying you're going to show up unless we tell you otherwise in fact the presumption was the opposite as i understand it she wasn't scheduled to show up and she was going to call and to find out whether she needed to come in that's correct these were shifts that she was not scheduled to show up for she had to call thirty to sixty minutes in advance and i just like to clarify and i did i certainly didn't mean to mislead the court sixty minutes in advance discovery has not taken place so it may well be that they were i and i think there was some flexibility i mean certain stores used it more than others in certain seasons not well not unless i'm your theory of the case would it matter i mean matter no because and i would like to bring to the legal issue at the heart of this appeal which is the meaning of the phrase report for work the operative language of the wage order requires compensation for employees who report for work but are sent home without working or working less than half their usual or scheduled day's work the words report for work the plain meaning of those words is to show up at the place of work ready to begin working it does through the gates but they're five minutes away i think and that's certainly not presented in these this case but i think if you are effectively at the place of work already so you're in the parking lot because you are you know three minutes in advance your  shift start and you call in or five minutes i can see a court saying look that's effectively being physically present at the location right i mean nobody can call five minutes in advance of the ship to not basically be there already but thirty to sixty minutes is categor different and that is not at the place of work you know reasonable constructive language could be seen to be so i think for purposes of and i think that case the five minute or the one minute whatever case i think could be put off for another day that presents a somewhat different issue also i am not sure frankly why any employer would do that to the extent this is considered helpful for flexibility it wouldn't benefit employers or employees to five more years because that would have to pay the person for showing up if you thought they went i think even employers need a certain amount of advance notice when an employee is going to show up and five minutes just doesn't really provide that so well but but i don't understand if somebody is supposed to show are going to show up but not for according to the complaint for these so called call in shifts in that situation they are not expected to show up they have to call in advance and they are then told we need you to show up or you don't need to show up today and isn't part of it the expectation i mean ironically the fact that when they call and they only have to show up fifty percent of the time suggests they shouldn't be expecting that they're going to be able to come in and yeah i think that would certainly be reasonable it's not it's far from a guarantee that but none of that changed the substantive terms here so are we stuck looking at the plain meaning of that language in one thousand nine hundred two or in one thousand nine hundred sixty eight or can we look at what it means today i think the appropriate lens is to look at what it meant when it was and acted and maybe the last time it was amended and at those times and even today it means and so i don't think it really matters but i think the appropriate lens is the intent in the meaning at the time of an ac your honor and that favors us because the meaning of report for work in one thousand forty two when this provision was in acted was clearly to show up in person at the place of work and that shown in particular by the use of the same phrase report for work in an adjacent prison of the same wage order which required the provision of suitable transportation for female employees this was in fact it did god and this is something just there last night when i was reading this and it appears that the hall and just real wage until sometime in the sixty's or the seventy's and is extended to everyone obviously that's not the world we live in today but but i think that the important point that i think it may be why that transportation provision was ultimately eliminated was because it was considered archaic  also why all the examples in manuals and legislative history are all about what it because that's what yes but and the important point to remember with respect to that is that it used the same phrase report for work so when a woman was required to report for work between the hours of ten pm and six am suitable transportation had to be provided by the employer that obviously necessarily assumes that she is coming to work in person and has to be transported back home if the industrial welfare commission meant to if the words report for it meant something broader than showing up in person calling in or something like that but the industrial welfare commission meant to target showing up in person in that provision they would have had to use different language they would have had to use more clear language like for instance if showing if they show up in person for work they didn't use that they used the word report for work which means that  and the same word report for work appears in our provision the reporting time pay provision and so they should be interpreted in parallel the legislative history is in accord certainly the welfare commission the division of labor standards and foresman which is the state agency charged with enforcing these wage orders has also consistently expressed its vs question why should we certify this question to the california supreme court we now have conflicting just record  opinions i would say at least you know colorable arguments on both sides i know we've been bothering the california supreme court with a fair number of these away generic cases but this one seems to me  a very important and one with which could have large ramifications and which might be subject to some nuanced statutory interpretation which are not very good position to me that is certainly an option this this court has i would say given your honour's question i should alert the court that there is a pending appeal in the california court of appeal the intermediate appellate court presenting this issue in a case called ward versus tilly's and it should be coming to decision relatively soon what and why since when was it submitted i believe it was so we don't know what what that opinion is going to decide if that opinion goes for the employers way i would say there might not be as much reason to certify it in that as they haven't come into these cases now having no no not as with briefs or the list of things but when opinion letters in their manual in the past they have indicated that that recent not recently no not recently but those those sources are out there and they could be relied on to indicate what the california supreme court might do so if the court of appeal were to go the other way against the employer that could be seen to create conflict around certainty in the law and that case sort of occasion might be more exactly so your honor's interpretation was correct on that matter and also in addition judge nelson had posed to you that there was no presumption that she was called in to actually show up in the complaint it was alleged that these ships were mandatory she was required to call in and to show up for one hundred percent of these shifts the only difference is sometimes when she called in they would cancel the shift she had to treat every single shift as mandatory i understand that but she wasn't scheduled to come into work there was not a schedule that said any of these plaintiffs were scheduled to work before they called and you know the schedule did say she was scheduled to come in for work but she also had to call and it did ok that's not the way i read the complaint so that and that's actually pretty interesting because i think it has a bearing on how the statutory language reads if if she was scheduled to come in but i read the complaint to say there are show up shifts where you are required to show up and then there are call in shifts and yes you're required to call in but there's no presumption that would come in or not my apologies if the allegations of the complaint were clear on that matter we're trying to cover that over pulling which that was stating that these shifts were scheduled and mandatory and i believe  know you're both right i mean they were scheduled and mandatory but only if when she called and then tell her to come so they had and she was not scheduled to comment she was scheduled to call in and commented tell it had come and clean just position is at the end of the because i think that really controls here in my view report well first is report for work does that mean the same thing as report to work is there a difference between those two phrases your honor but plaintiff takes the same position as the trial court in this matter that ultimately that was an issue of semantics if anything the fact that report for work was chosen makes it clear that there was no physical rip acquirement but at the end of the day neither of those phrases is physically report to the workplace they are clear they're simply that an employee must be required to report for work and must report but that can't be correct given what we just heard that in one thousand five years after this one was adopted there was a wage order that came out that said that clearly used report for work and assumed that the women would be there at work and the transportation would be required so if your position is correct that they would have had to say no you have to physically come same thing as words do you have any reason to believe that when they said report for work in the one nine hundred forty two wage order they meant something different than when they used it in the one nine hundred forty eight wage order not when used in i think the best way for me to address that is the differing intense of those two sections of the wage order why are we even get into a ten if this if this is unambiguous you both argued all the district courts would have heard this have said it's unambiguous so intent doesn't matter i mean honestly eighty percent of the briefing here really doesn't support it the question is does report for work mean that you have to physically show up and i'll be honest i've looked at every use of report for work going back to the eight hundred psi haven't found a single instance in any english language publication where it doesn't imply a public a physical presence i think plate disposition is our position is that completely disagrees with that as reason can you cite me to any use we've got some high school kids here if they were sent a letter during the summer and said report for school in august and you know instead of september  any of these students really think that they could just call in and satisfy the report for school requirement yes your honor in in a situation such as we have here if the school necessitates a mandatory means of reporting if they say you need to report to school by phone on this date and absolutely if they said report by phone i totally agree with you and if they just use the word report i totally agree with you but seems like we're looking at report for work as a specific phrase and i'm just telling you i'd like to see any example in the history of the english language where report for work does not require a physical presence i haven't found it plain plaintiff cited several dictionary definitions which use the report yes yeah but i don't see them to be all that useful to you because for example the oxford living dictionary preset oneself formally as having arrived at a particular place or is ready to do something but he's not ready to do that i mean neither one applies because he's not ready to work he is going to be ready in an hour she is ready willing and able to commit to reschedule shifts a comin but not for work now and it's at least not terribly helpful it seems to me and on the other hand as i said before i don't know where the cut off is on the other side's argument either but to run some hypotheticals for you what if the rule was not that she had to call in but that they would call her between an hour and a half hour i think that would potentially make a difference i think that would well that's a very silly difference and  and see them reporting for work as if she's if they call her in the same way as if she calls in and she's supposed to treat these shifts as mandatory and she says yes i'm ready willing and able to come in and she's complying with the exact manner of reporting that those making the cars nothing to do with it is what she says i'm ready to cop it's what she says and what's being required by the employer the big thing here is is that zumiez position is that where the employers established a mandatory means of reporting that's not physical in nature and the employee reports in the exact manner that's being required it still doesn't count as reporting and what it is that this account is reporting for work that's the question here i understand the policy arguments here i understand you don't want this by the way  i think that presents an inch an interesting factual question ultimately plaintiff's position is that if if they're being to required to report in a certain way in their reporting as required by the employer the employer shouldn't be able to circumvent the wage order in the wage order itself does not state these extra elements physically report to the work absolutely the wage order says that that's the whole point the plain language clearly clearly presumes that you're going to be physically present you've twisted it to suggest that they had to say that you have to be physically calm but that's not there when you're using the plain language of report for work the clear presumption report for duty you're going to physically show up early be ready i don't know i agree th you know i think we've heard of before if they're in that if they're on their way or they're in the parking lot but there's no allegation that that's going on here this is clearly it seems to me an employer who is trying to give flexibility to the employees to give them notice of that they don't have to come in and they can call in to find out whether they need to come in unfortunately with the purpose of the added compensation i'm sorry the purpose of the added compensation is to it's to compensate the employee for having to mold their life around these inefficient scheduling requirements i believe the trial court noted the incentives that led employers to engage in the behavior that caused the i w c to create the wage orders provision in the first place still exist creating a surplus pool of contingent workers ready to begin work at a moment's notice only to notify some number of them that their services would not be required that provides an enormous benefit to the employers while forcing the workers to prepare a set of contingency plans during that time the employees are not able to they have to make the same arrangements and sacrifices as she would for any other shift in this call and situation she has to arrange for child court child or elder care during the hours of the shift she can't get how many of these in a single yes have to deal with elder care that i don't know your honor how many have to deal with child care that i don't know your honor but these are minimum wage jobs and it would be very very difficult for some of these employees to be able to make these sacrifices that may be absolutely be but the question here is does it is it covered by the way george or the wage order doesn't cover every difficulty that employee faces in holding a job no but it did over at least state and earth at least the legislative intent behind it did overtly state that it was meant to compensate for this exact sort of situation that's how is it that was in the the matt the d s l the manual right there was in the d l c manual it was in several of the reported the cited pieces of legislative history when was the first time that that was mentioned in either the mind or stays in the d s l e man you know that was first mentioned in one thousand nine hundred nine forty years after this was adopted when was the first time it was mentioned in the don't think it needs to be amended here the issue is that the penalty here is tied to wages is not tied to travel expenses travel time in any of that manner it was specifically written in this broad manner in a way to where it could evolve in time as defendant had mentioned in their reply brief and their underlying brief telephones were around at that time it wasn't a primary form of reporting but it is something that someone could have done work by phone and been required to call and report hey i'm starting i want to call that's a completely different thing in other words if you know if you're working at your home you know telecommuting and the requirement is that you call when your shift starts and say you are now starting to work i mean that's a different thing because you're reporting for work because you're at the place of work your work is not at the at the plant or the store it's wherever your so that doesn't seem helpful to me to your point well they're reporting for unfortunately i don't want to circle around but but in plaintiff's position is they are reporting for work these are mandatory schedule shifts they have to treat them as if they're ready and willing and able to complete but not at that moment an hour from now you know and  that's why i want to six hours from now what but let me ask you when i asked your opponent why should we certify this to the california supreme court or order as amended now wait to see what they perhaps wait to see what the california court of appeals does but at least consider certifying it to the california supreme court and this is going to end up so in our later if we were in your favor yes it's going to end up in the california supreme court by some other route so why don't we just get this done and over with and i don't have to take it but why don't we certified the average supreme court well i think you'll be happy to hear we have a meeting of the minds in that manner plaintiff's position is yes this would be a really really important issue to be certified for the california supreme court to hear additionally just in preparation for this oral argument i court here and they found on our side in this the same they found in the same vein as our trial court here so this this issue is going to keep coming up and keep coming up we think that it would be absolutely a fine idea for the california supreme court to address it with this with this ward opinion or this ward no one fortunately i wasn't until i came in here today i'm going to have to look into that and potentially plan on jumping in on that a little bit as well just as defense counsel mentioned so he can i ask one question that you may not be addressing and you've you've got to call in the complaint or the request for compensation for calling time yes or reporting time i'm sorry so that would be half of the schedule shift which is at a minimum question minimum of two hours maximum of are you are you requesting that in addition to the time you get a separate complaint or a separate count addresses the time for the phone calls which is five to fifteen that's you are you are you pleading both of those as alternatives are you trying to get half of the compensated time for the schedule plus the time that they're on the phone we are treating both of those as not as alternatives but as simultaneous claims our position is that she by making these phone calls under the direction and control of zoom is management this was a planned designated thing that she had to do she had to be on a call for i believe it was allege seven to fifteen minutes is no different than having a telephonic meeting with your manager and that is considered work under california law then are they still working after the hang up the phone before they've actually reported for work well it would be like this position is that would be a break a break in work at that point and that's another thing that lends to the fact that they have in fact reported for work they were conducting work during that time they made that call and at any point after that first reporting the reporting time pay is triggered you have to have a separate reporting for claim when they're at the site yes when they're at the site after they had been scheduled for a show up shift and that's that's sort of an interesting claim there basically how that would work was plain just position is the fact that by designating these as two separate ships and requiring two separate reporting procedures it falls under section b of the wage order that by the second time they had in fact reported for work for that second shift defendant argues that because they're not actually leaving the location and coming back or there's no temporal gap in between the two they're not two separate  ships planes disposition is that that would be remedied by looking at it as more of an issue of fact the reason is i apologize let me compose myself for a second to try and give you the best argument going forward on that but at the at the end of the day when this is being argued it's sort of factual situation whether or not this is a single shift or two shifts by the fact that one they were designate is two separate shifts requiring two separate reporting versus the other side where there was no temporal gap in between the two if it's found to be a single shift they would still be liable for the shifts where the second half was longer than the first half because they were not given half of their daily wages so at the is so at the end of the day there would still be room for the claim to survive it would just have to be potentially pleated slightly different under those circumstances but as i mentioned that would all be remedied just by allowing it to move forward under the facts that these are two separate shifts with two separate reportings and the issues effect could be determined later on but as i understand it and i'm not sure i understand why it's an alternative claim  cannot reach it because he thought that the call and claim covered it yes but i gather you agree with that but i i really don't quite understand why oh it's just because for the judgement on the pleadings if you've stated a complete claim in one capacity th it's been properly pled so i understand but i don't understand is why the call and claim covers this other claim  shift situation is covered by that yes your honor and i'm i'll do my best to respond i'm not quite sure if i'm if i'm following the exact question but if we are so i know that you are right on the first if if defendant was seeking to strike just a portion of the claim that would that was as an alternative basis of the claim why the alternative about it that's what i don't understand why isn't an additional as opposed to alternative  well it could be it could be construed it could be construed as additional i understand what you're saying your honor well that would be additional i mean if to separate issues yes our position was if one of the two was stated then that was sufficient to meet the pleading standard and if a portion of that section of the pleadings was wish to be struck that would be more adequately dealt with by a motion to strike most versus a motion for judgment on the pleading i think you think certification concentrated on the precise issue not on the entire motion to dismiss so why don't we put one of the got my understanding of twelve ninety two b sort of occasion is that the entire order is certified for appeal it may be that about things he didn't decide like this claim to well that i think would follow normal rules of appellate review whereby if if it's a purely legal issue it's certainly within this court's power to refuse a show here though because the what's entire order that is up for review and within this court's power if i could just get to the plaintiff's points the issue of whether the policy is mandatory reporting versus mandatory calling in its defendants position that what is mandated is calling in not reporting for work at the time of the call the plaintiff discussed public policy and the purpose behind this certainly  public policy can animate changes in the law and if the public policy behind this provision as it's exist today is considered inadequate or the provision needs to be changed the california legislature stands ready to step in we in our brief discussed how requite recently the california legislature has addressed this very area so it's quite aware of this and not just well it considered in acting to bill's it's true it did not act those bills but i think that's evidence that it stands ready to address it again and can i ask a question about that because i tend to agree that the fact that they didn't and act legislation doesn't really mean much but when did when did these policies because zoom is not the only one clearly we've got a lot of employers doing this is this only in california or is this nationwide that they're doing this i don't know as a matter of fact i mean i believe that policy was throughout its operations and i don't think it was just in california but and  way to make this relevant is if these were adopted as a policy matter by employers like three or four years ago then perhaps the legislation has more bearing that i might have initially thought because maybe the legislation then was a reaction to what the employers were trying to do i think that's correct your honor and just to be clear we don't point to those an act of bills as evidence of what report for work means because i think that's right it doesn't have much bearing on that but i think it does have bearing on the public policy are going to play to put a lot  in her briefing on the public policy issues involved with this type of policy and and i think there the issue that the california legislature has recently considered these bills is relevant well and in it perhaps is relevant to suggest that the california legislature thought that with the wage orders don't cover this and that they needed to cover and yes i think that that is normally a stretch to make but the circumstances here might suggest that that's correct toss a bill correct and just briefly the plaintiff talked about her minimum wage claims and the second reporting time pay claims we brief this and i'm sure the panel's aware of those arguments position is that the time for the minimum wage claim was not subject to the employer control the time spent on the call we've we've just explained why and on the second reporting claim i don't know if this idea that they're seeking both it strikes me is pretty heavy handed on the planes was part because if you're already by statute get half of the reported time whether or not you show up or not then you want to tack on an additional fifteen minutes why would that be subsumed if we were going to go that route well i would agree with your honor i think it is a bit overreaching but but in any case on the  legal test this doesn't under them early in case fall within the meaning of control is the employer's position as to tell as to the telephone call time itself the five to fifteen minutes the plaintiff has alleged i would just want to on the second reporting time claim it sounds like there's some confusion on that issue the plaintiff alleged in her complaint that when an employee is scheduled for calling shift immediately after a show up shift the employee must wait until the end of the show shift to ask their manager if they will be permitted to work the call and shift when employees report for these call in shifts they do so immediately before or at the beginning of the scheduled call in shifts so my learned opponent said that there was maybe some factual uncertainty according to her were poor for work claimed not getting to the second shift she was there for to bring for work for the second shift and they're telling her to go home right but it's the way that the division of labor standards and fortune has interpreted that is that reporting time pay is not unless there is a hiatus so if you are for so for instance that's not true because that as i understand it well at least when i looked at it it seemed to me that the a b and c which included the the interruption language pertained to b or if there is a rain storm and why and the person shows up in your head of flooding you can't give them mention but have to shift then the the interruption of work is there's no work but but the reporting time doesn't apply that's what they meant well my understanding of subdivision c is that it really is only relevant subdivision b because if if you don't if you can't show up in the first place at the beginning of your shift at the start of the day because of rain or whatever act of god it's not an interruption it's just well show use the term interruption meaning right now we're meeting the work is interrupted there's no work well i interpret interrupt to mean a hiatus you've been working you have to stop working for some reason and th well i think it's a separate shift and so i think the reporting has to be evidence of a separate shift they're there well because again if i think that would nullify the second reporting time for in the whole purpose of the second reporting time provision is if you have  to later in the day after your first reporting right if there is a continuation of work if you have to take a hiatus and come back then you have a second reporting if there is no hiatus and you just continue working then but this you don't g