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Herrera v. Zumiez, Inc.

United States Court of Appeals for the Ninth Circuit

February 4, 2019, Argued and Submitted, San Francisco, California; March 19, 2020, Filed

No. 18-15135


 [*1066]  PAEZ, Circuit Judge:

] California law requires employers to provide partial compensation [**5]  ("reporting time pay") to retail employees who report for work but are not actually provided work. Alexia Herrera ("Herrera") filed this putative class action alleging that Zumiez, Inc. ("Zumiez") failed to pay employees at its California retail stores reporting time pay for "Call-In" shifts. As alleged, an employee scheduled for a Call-In shift must make herself available to work during the shift and then call her manager thirty minutes to one hour before the shift or, if she works a shift immediately before the Call-In shift, contact her manager at the end of that shift. At that time—either during the call or during the post-shift contact—the manager tells the employee whether she will be required to work during the Call-In shift. If the employee does not work, Zumiez does not pay the employee. Herrera also alleged related claims for failure to pay minimum wages and failure to indemnify expenses for phone calls employees needed to make to comply with the Call-In policy.

Zumiez moved for judgment on the pleadings. The district court denied the motion. This interlocutory appeal followed.

While this appeal was pending, the California Court of Appeal decided Ward v. Tilly's, Inc., 31 Cal. App. 5th 1167, 243 Cal. Rptr. 3d 461 (Ct. App. 2019), review denied (May 15, 2019). [**6]  Ward 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. Because there is no "persuasive data" to convince us that the California Supreme Court would decide otherwise, we follow Ward's "controlling interpretation of state law" and affirm with respect to the reporting time pay claim. Tomlin v. Boeing Co., 650 F.2d 1065, 1069 n.7 (9th Cir. 1981); see also West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S. Ct. 179, 85 L. Ed. 139 (1940). With respect to the other claims, we affirm in part and reverse in part.

Herrera filed a putative class action against Zumiez, a Washington corporation with retail stores in California. We summarize the relevant facts as alleged in Herrera's First Amended Complaint.

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953 F.3d 1063 *; 2020 U.S. App. LEXIS 8660 **; 170 Lab. Cas. (CCH) P62,031

ALEXIA HERRERA, Plaintiff-Appellee, v. ZUMIEZ, INC., Defendant-Appellant.

Subsequent History: Later proceeding at Herrera v. Zumiez, Inc., 2020 U.S. App. LEXIS 10769 (9th Cir. Cal., Apr. 6, 2020)

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:16-cv-01802-SB. Stanley Allen Bastian, District Judge, Presiding.

Bernal v. Zumiez, Inc., 2017 U.S. Dist. LEXIS 131802 (E.D. Cal., Aug. 16, 2017)

Disposition: AFFIRMED in part, REVERSED in part, and REMANDED.


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Business & Corporate Compliance, Wage & Hour Laws, Scope & Definitions, Minimum Wage, Civil Procedure, Appeals, Standards of Review, De Novo Review, Judgments, Pretrial Judgments, Judgment on Pleadings, Labor & Employment Law, Scope & Definitions, Preliminary Considerations, Federal & State Interrelationships, Governments, Legislation, Interpretation, Pleadings, Complaints, Requirements for Complaint, Labor & Employment Law, Employer Liability, Contract Liability, Contract Indemnity