Alexia Herrera v. Zumiez, Inc. ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXIA HERRERA, No. 18-15135
Plaintiff-Appellee,
D.C. No.
v. 2:16-cv-01802-SB
ZUMIEZ, INC., OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted February 4, 2019
San Francisco, California
Filed March 19, 2020
Before: Richard A. Paez, Marsha S. Berzon, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Paez;
Concurrence by Judge Berzon;
Concurrence by Judge R. Nelson
2 HERRERA V. ZUMIEZ, INC.
SUMMARY *
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.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.
COUNSEL
John F. Querio (argued), Felix Shafir, and Scott P. Dixler,
Horvitz & Levy LLP, Burbank, California; Nathan W.
Austin and Evan D. Beecher, Jackson Lewis P.C.,
Sacramento, California; for Defendant-Appellant
Cody Kennedy (argued) and Stanley D. Saltzman, Marlin &
Saltzman, LLP, Agoura Hills, California, for Plaintiff-
Appellee.
Mark D. Kemple and Ryan C. Bykerk, Greenberg Traurig,
LLP, Los Angeles, California, for Amicus Curiae
Abercrombie & Fitch Stores, Inc.
HERRERA V. ZUMIEZ, INC. 5
OPINION
PAEZ, Circuit Judge:
California law requires employers to provide partial
compensation (“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., 243 Cal. Rptr. 3d 461
(Ct. App. 2019), review denied (May 15, 2019). 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,
6 HERRERA V. ZUMIEZ, INC.
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 (1940). With respect to the other claims, we affirm in
part and reverse in part.
I.
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.
From August 2014 through March 2015, Herrera worked
as a Sales Associate at a Zumiez retail store in Chico,
California. Zumiez scheduled Herrera and other employees
for work according to two scheduling policies. First, Zumiez
scheduled employees for “Show-Up” shifts, requiring the
employees to report for the scheduled work shift by
physically showing up at a Zumiez store.
Second, Zumiez scheduled employees for “Call-In”
shifts. If the employee was scheduled for a Show-Up shift
immediately before a Call-In shift, the employee had to wait
until the end of the Show-Up shift to ask her manager if she
would be required to work the scheduled Call-In shift. If the
employee was not scheduled to work a Show-Up shift
immediately before a Call-In shift, then the employee was
required to make a phone call to her manager between thirty
minutes and one hour before the scheduled Call-In shift. The
employee would then wait for the manager to determine
whether the employee would be permitted to work during the
scheduled shift. Phone calls for Call-In shifts generally
lasted five to fifteen minutes.
HERRERA V. ZUMIEZ, INC. 7
Whether she had a shift before the Call-In shift or not,
the employee was required to be available to work the Call-
In shift. The employee could be subject to discipline for not
working Call-In shifts for the same reasons she could be
disciplined for not working Show-Up shifts. The employee
could not schedule classes or doctor appointments, or work
for other employers during the Call-In shift, and she had to
make child or elder care arrangements under the assumption
she would work. Employees were not paid for Call-In shifts
unless they were permitted to work and were not paid for the
time they spent on the phone with their managers. Herrera
and other employees were scheduled for Call-In shifts three
to four times per week; they worked approximately half of
these shifts.
Herrera alleged the following causes of action: (1) failure
to pay reporting time wages for Call-In shifts; (2) failure to
pay minimum wage; (3) failure to keep required records;
(4) failure to provide accurate wage statements; (5) failure to
pay all earned wages upon separation from employment;
(6) failure to indemnify expenses for phone calls made for
Call-In shifts; (7 and 8) unfair business practices under
California’s Unfair Competition Law; and (9) civil penalties
pursuant to California’s Private Attorneys General Act
(“PAGA”). Zumiez moved for judgment on the pleadings
on all of Herrera’s claims pursuant to Federal Rule of Civil
Procedure 12(c).
The district court denied Zumiez’s motion as to all
claims. First, the district court held that “‘report for work’
may be accomplished telephonically,” so Herrera had stated
a reporting time pay claim. The district court did not address
liability for reporting time pay where a Call-In shift
immediately follows a Show-Up shift. Second, drawing
inferences in Herrera’s favor, the district court found that the
8 HERRERA V. ZUMIEZ, INC.
complaint plausibly alleged that employees were subject to
their employer’s control during phone calls, so Herrera had
stated a minimum wage claim. The district court recognized
that factual questions remained to determine whether
employees were subject to their employer’s control during
calls. Third, the district court found that Herrera had alleged
that Zumiez had constructive knowledge that employees
would use cell phones or otherwise incur expenses when
making the calls, so Herrera had stated an indemnification
claim.
The parties agreed that the claims for failure to keep
required records, failure to provide accurate wage
statements, failure to pay all earned wages upon separation
from employment, unfair business practices, and civil
penalties under PAGA (collectively, the “remaining
claims”) were derivative of the other claims. Accordingly,
the district court denied judgment on the pleadings as to
those claims as well.
The district court then granted Zumiez’s motion to
certify its order denying judgment on the pleadings for
interlocutory appeal, 28 U.S.C. § 1292(b), noting that the
“not otherwise appealable order . . . ‘involves a controlling
question of law as to which there is substantial ground for
difference of opinion,” namely “does the wage order require
workers to physically come to the workplace in order to
report?” Zumiez then filed a petition for permission to
appeal, identifying the question sought to be appealed as
“[w]hether an employee must physically present himself or
herself at the workplace in order to ‘report for work’ and
thereby qualify for reporting time pay under California law.”
We granted the petition and this appeal ensued.
HERRERA V. ZUMIEZ, INC. 9
II.
We review de novo an order on a Rule 12(c) motion for
judgment on the pleadings. Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009). We accept all factual allegations
in the complaint as true and construe them in the light most
favorable to the non-moving party. Id. As under a Rule
12(b)(6) motion to dismiss, a Rule 12(c) motion for
judgment on the pleadings is properly granted only when,
“taking all the allegations in the pleadings as true, the
moving party is entitled to judgment as a matter of law.”
Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 978–
79 (9th Cir. 1999) (internal citation omitted).
III.
We have diversity jurisdiction pursuant to 28 U.S.C.
§ 1332 and apply California law. See Klingebiel v. Lockheed
Aircraft Corp., 494 F.2d 345, 346 & n.2 (9th Cir. 1974). In
California, wage and hour claims are governed by two
sources of authority: provisions of the Labor Code, enacted
by the Legislature, and a series of wage orders, adopted by
the Industrial Welfare Commission (“IWC”). Troester v.
Starbucks Corp., 421 P.3d 1114, 1119 (Cal. 2018), as
modified on denial of reh’g (Aug. 29, 2018). The California
Division of Labor Standards Enforcement (“DLSE”) is the
state agency empowered to enforce the wage orders.
Morillion v. Royal Packing Co., 995 P.2d 139, 142 (Cal.
2000). The California Supreme Court has said “[t]ime and
again” that courts should construe the wage orders “to favor
the protection of employees.” Troester, 421 P.3d at 1119
(quoting Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823,
827 (Cal. 2016)). Wage Order No. 7-2001 (“Wage Order
7”), which regulates the wages, hours, and working
10 HERRERA V. ZUMIEZ, INC.
conditions in the mercantile industry, applies here. 1 Cal.
Code Regs. tit. 8, § 11070.
A. Reporting Time Pay
Herrera alleges that Zumiez failed to comply with the
reporting time pay requirements of Wage Order 7 by
denying employees compensation for Call-In shifts when
employees made themselves available for work during
scheduled shifts, called or contacted Zumiez at an appointed
time, and were told they would not be permitted to work.
Cal. Code Regs. tit. 8, § 11070(5).
Pursuant to section (5) of Wage Order 7, which is
entitled “Reporting Time Pay,” “[e]ach workday an
employee is required to report for work and does report, but
is not put to work or is furnished less than half said
employee’s usual or scheduled day’s work, the employee
shall be paid for half the usual or scheduled day’s work” in
an amount no less than two hours’ wages and no more than
four hours’ wages. Id. § 11070(5)(A). The parties dispute
whether calling one’s employer at an appointed time before
a scheduled shift constitutes “report[ing] for work” under
this provision. 2
1
Wage Order 7-2001 governs “all persons employed in the
mercantile industry,” except for employees working in “administrative,
executive [managerial], or professional capacities.” Cal. Code Regs. tit.
8, § 11070(1)(A). Herrera’s claims pertain to the pay of non-exempt
retail workers.
2
The parties also dispute whether reporting for a scheduled Call-In
shift that immediately follows a Show-Up shift constitutes “reporting for
work” under subsection (5)(B) of Wage Order 7. Cal. Code Regs. tit. 8,
§ 11070(5)(B) (requiring pay “[i]f an employee is required to report for
work a second time in any one workday and is furnished less than two
HERRERA V. ZUMIEZ, INC. 11
1. Ward v. Tilly’s, Inc.
While this appeal was pending, the California Court of
Appeal published Ward v. Tilly’s, Inc., 243 Cal. Rptr. 3d
461. Ward addressed a question closely similar to one in this
case: whether retail store employees were due reporting time
pay pursuant to Wage Order 7 when they contacted the store
two hours before their Call-In shift (i.e., “on-call” shift)
started—as required by their employer—and were told not
to come to work. Ward, 243 Cal. Rptr. 3d at 463–65. The
court “conclude[d] that the on-call scheduling alleged . . .
triggers Wage Order 7’s reporting time pay requirements,”
reasoning that such shifts “burden employees, who cannot
take other jobs, go to school, or make social plans during on-
call shifts—but who nonetheless receive no compensation
. . . unless they ultimately are called in to work. This is
precisely the kind of abuse that reporting time pay was
designed to discourage.” Id. at 463–64.
The dissent in Ward maintained that the drafters’ intent
behind the wage order was to require a worker to physically
appear at the workplace to qualify for reporting time pay. Id.
at 479–80. Relying on the “plain meaning of the word
‘report,’” Ward, 243 Cal. Rptr. 3d at 480 (quoting Casas v.
Victoria’s Secret Stores, LLC, No. CV 14-6412-
GW(VBKx), 2014 WL 12644922, at *3 (C.D. Cal. Dec. 1,
2014)), the partial dissent reasoned that reporting for work
required “physically showing up at the place ready to work,”
Ward, 243 Cal. Rptr. 3d at 480 (quoting Casas, 2014 WL
(2) hours of work on the second reporting”). Because the district court
did not consider this claim, we do not address it here. On remand, the
district court may address this claim as appropriate.
12 HERRERA V. ZUMIEZ, INC.
12644922, at *3), by definition excluding Call-In shifts from
the wage order’s reporting time pay requirements.
The California Supreme Court denied a petition for
review in Ward. We follow Ward to resolve the parties’
dispute about the meaning of “report for work” under
subsection (5)(A) of Wage Order 7. As a federal court, we
are not “free to choose [our] own rules of decision whenever
the highest court of the state has not spoken.” Am. Tel. &
Tel. Co., 311 U.S. at 236. Instead, “[w]here an intermediate
appellate state court rests its considered judgment upon the
rule of law which it announces, that is a datum for
ascertaining state law which is not to be disregarded by a
federal court unless it is convinced by other persuasive data
that the highest court of the state would decide otherwise.”
Id. at 237; Torrance Nat. Bank v. Aetna Cas. & Sur. Co., 251
F.2d 666, 669 n.6 (9th Cir. 1958) (“This decision on local
law by a highly respected intermediate court of appeal must
be accorded great weight.”). “This is the more so where, as
in this case, the highest court has refused to review the lower
court’s decision.” Am. Tel. & Tel. Co., 311 U.S. at 237; see
also Ogden Martin Sys., Inc. v. San Bernardino Cty., 932
F.2d 1284, 1289 (9th Cir. 1991) (“We are less strictly
compelled to follow intermediate appellate decisions when
those decisions have not been appealed to the state’s highest
court.”). Even if it is arguable that the California Supreme
Court “will at some later time modify the rule . . . [i]n the
meantime the state law applicable to these parties and in this
case has been authoritatively declared by the highest state
court in which a decision could be had.” Am. Tel. & Tel.
Co., 311 U.S. at 238. 3
3
In Segal v. Aquent LLC, a district court held that calling in to work
on assigned workdays is reporting for work within the meaning of the
HERRERA V. ZUMIEZ, INC. 13
Zumiez argues that we should not follow Ward because
there is persuasive data that the California Supreme Court
would reach a different conclusion. As we shall explain, we
are aware of no such persuasive data. Alternatively, Zumiez
argues that we should certify the question of interpreting
Wage Order 7’s reporting time pay provision to the
California Supreme Court—even though the California
Supreme Court recently denied a petition for review in
Ward, which presented that very question. See Am. Tel. &
Tel. Co., 311 U.S. at 237. Notably, there are no conflicting
California Courts of Appeal decisions. See Contra Pooshs
v. Phillip Morris USA, Inc., 561 F.3d 964, 968 (9th Cir.
2009) (certifying a question where multiple California
Courts of Appeal decisions spanning the course of two
decades had produced split decisions); Estrella v. Brandt,
682 F.2d 814, 817 (9th Cir. 1982) (certifying a question
where three California Courts of Appeal had construed the
meaning of the applicable statute in different ways).
Because we are the first federal appellate court to address
this issue, there is no “sharp split of authority between the
California Courts of Appeal and the Ninth Circuit regarding
the proper interpretation of” state law. Emery v. Clark, 604
F.3d 1102, 1112 (9th Cir. 2010) (certifying a question where
statute. No. 18-cv-346-LAB (JLB), 2018 WL 4599754, at *5 (S.D. Cal.
Sept. 24, 2018). In contrast, Casas v. Victoria’s Secret Stores, LLC, held
that the reporting-time provisions of the wage order do not provide a
remedy for employees who are required to call in to work but then not
permitted to work. No. CV-14-6412-GW (VBKx), 2014 WL 12644922,
at *6 (C.D. Cal. Dec. 1, 2014). Disagreement among federal district
courts does not persuade us that the California Supreme Court would
decide the question differently than the California Court of Appeal,
especially as it had the chance to do so after the district court decisions.
See Daniel v. Ford Motor Co., 806 F.3d 1217, 1223 (9th Cir. 2015)
(recognizing that we “must adhere to state court decisions—not federal
court decisions—as the authoritative interpretation of state law”).
14 HERRERA V. ZUMIEZ, INC.
“a conflict [had] been recognized by courts on both sides of
the precedential divide”). We decline to certify the question
because we have no reason to doubt that the California
Supreme Court would reach an outcome consistent with
Ward.
2. Principles of Interpretation
California’s “wage orders are to be accorded the same
dignity as statutes.” Troester, 421 P.3d at 1119; see also
Watkins v. Ameripride Servs., 375 F.3d 821, 825 (9th Cir.
2004) (recognizing that wage orders are “quasi-legislative
regulations that are to be interpreted in the same manner as
statutes”). Thus, we apply California’s “usual rules of
statutory interpretation.” Brinker Rest. Corp. v. Superior
Court, 273 P.3d 513, 527 (Cal. 2012); see also CPR for Skid
Row v. City of Los Angeles, 779 F.3d 1098, 1104 (9th Cir.
2015) (recognizing that our court “appl[ies] California’s
rules of statutory construction” to California law).
California case law requires that we give effect to the IWC’s
purpose of protecting employees:
When construing the Labor Code and wage
orders, we adopt the construction that best
gives effect to the purpose of the Legislature
and the IWC. Time and again, we have
characterized that purpose as the protection
of employees—particularly given the extent
of legislative concern about working
conditions, wages, and hours when the
Legislature enacted key portions of the Labor
Code. In furtherance of that purpose, we
liberally construe the Labor Code and wage
orders to favor the protection of employees.
HERRERA V. ZUMIEZ, INC. 15
Troester, 421 P.3d at 1119 (internal citations and quotations
omitted); see also Martinez v. Combs, 231 P.3d 259, 276
(Cal. 2010); Ramirez v. Yosemite Water Co., Inc., 978 P.2d
2, 8 (Cal. 1999); Ward, 243 Cal. Rptr. 3d at 467 (recognizing
and applying the principle of construing wage orders to
protect employees).
Statutory interpretation under California law begins with
the words themselves, giving them “their plain and
commonsense meaning,” because the words of a legal text
“generally provide the most reliable indicator of [the
enacting body’s] intent.” Murphy v. Kenneth Cole Prods.,
Inc., 155 P.3d 284, 289 (Cal. 2007). If the “language is clear
and unambiguous our inquiry ends.” Id. “[W]hen the
language is susceptible of more than one reasonable
interpretation, we look to a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to
be remedied, the legislative history, public policy,
contemporaneous administrative construction, and the
statutory scheme of which the statute is a part.” Nolan v.
City of Anaheim, 92 P.3d 350, 352 (Cal. 2004).
Furthermore, Ward recognized that earlier-enacted
California statutes can be applied to later adopted
technologies without compromising principles of legislative
intent. 243 Cal. Rptr. 3d at 469–71. “[I]n construing statutes
that predate their possible applicability to new practices or
technology, ‘courts have not relied on wooden construction
of their terms.’” Id. at 469 (quoting Apple Inc. v. Superior
Court, 292 P.3d 883, 887 (Cal. 2013)). In one such instance,
for example, the California Supreme Court concluded that
although the Song-Beverly Credit Card Act was “enacted in
1990, almost a decade before online commercial transactions
became widespread,” that fact did not preclude the statute’s
application to such transactions. Id. at 887–87. Similarly,
16 HERRERA V. ZUMIEZ, INC.
the California Court of Appeal has interpreted the phrase
“members’ names [and] addresses” in a provision of the
Corporations Code enacted in 1978 to include “e-mail
addresses,” even though e-mail had not become a form of
widespread and instantaneous communication at that time,
because “the legislative purpose of the statute indicate[d] the
Legislature would have intended the inclusion of e-mail
addresses in the original statute had it anticipated the
existence of such.” WorldMark, The Club v. Wyndham
Resort Dev. Corp., 114 Cal. Rptr. 3d 546, 556–58 (Ct. App.
2010); see also O’Grady v. Superior Court, 44 Cal. Rptr. 3d
72, 104–05 (Ct. App. 2006) (holding that an online news
magazine constitutes a “periodical publication” under a law
that was enacted before digital magazines).
Ward recognized and applied these principles of
interpretation under California law. 243 Cal. Rptr. 3d at
467–75. We do so as well.
3. “Report for Work”
The parties dispute, in this interlocutory appeal, whether
“report for work” under subsection (5)(A) of Wage Order 7
includes calling one’s manager thirty minutes to one hour
before a scheduled shift, as Herrera argues it does. Zumiez
argues that one can only “report for work” in person and
therefore only an employee’s physical presence may trigger
the reporting time pay requirement. The California Court of
Appeal resolved this dispute in Ward.
First, the California Court of Appeal considered the
plain language of Wage Order 7 and determined that “the
text of Wage Order 7, alone, is not determinative of the
question.” 243 Cal. Rptr. 3d at 468. In Wage Order 7,
“report for work” is not modified by terms such as
“physically” or “at the workplace.” Cal. Code Regs. tit. 8,
HERRERA V. ZUMIEZ, INC. 17
§ 11070(5)(A). Ward recognized that dictionary definitions
of “report” point in both directions. 243 Cal. Rptr. 3d at
468–69. Some definitions “have a spatial element,”
suggesting physical presence; whereas other definitions
“focus on the reporter’s intent, rather than his or her
location.” Id. (emphasis in original); see also Report,
Oxford Living Dictionaries: English, available at
https://en.oxforddictionaries.com/definition/report (last
visited Sept. 27, 2019) (defining “report” as to “[p]resent
oneself formally as having arrived at a particular place or as
ready to do something”) (emphasis added).
Zumiez argues that the definition of “work” is “the place
where one is employed,” so “report for work” means
physically showing up at that place. Zumiez acknowledges,
however, that work has other common meanings, such as
“activity in which one exerts strength or faculties to do or
perform.” Because one can report to a place or for a task,
Ward found that the plain language of the text remains
susceptible to more than one meaning, making the language
alone therefore not dispositive. There is no persuasive basis
for believing that the California Supreme Court would
decide otherwise. See Am. Tel. & Tel. Co., 311 U.S. at 237.
Second, the California Court of Appeal turned to the
regulatory history and purpose of the reporting time pay
provision of Wage Order 7. Ward, 243 Cal. Rptr. 3d at 469–
75. The court concluded that at the time that Wage Order 7
was enacted—in 1943—telephonic reporting had not been
contemplated, but that “[t]he contemporaneous
understanding of ‘report for work’ is not dispositive.” 4 Id.
4
Zumiez argues that the California Court of Appeal erred in
concluding that statutory interpretation principles allow for
“evolutionary arguments,” citing to New Prime Inc. v. Oliveira, 139
18 HERRERA V. ZUMIEZ, INC.
at 469. Instead, the California Supreme Court “constru[es]
statutes that predate their possible applicability to new
practices or technology,” id. (quoting Apple, 292 P.3d at
887), by determining “how the [enacting body] would have
handled the problem if it had anticipated it.” Id. (quoting
People v. Butler, 451 Cal. Rptr. 2d 150, 151 (Ct. App.
1996)). Accordingly, the California Court of Appeal looked
to the history and purpose of Wage Order 7’s reporting time
pay requirement and found the history “reveals . . . that the
IWC’s purpose in adopting reporting time pay requirements
was two-fold: to ‘compensate employees’ and ‘encourage
proper notice and scheduling.’” Id. at 472–72 (quoting
Murphy, 155 P.3d at 295) (alteration omitted). Therefore,
the California Court of Appeal determined, “had the IWC
considered the issue, it would have concluded that
telephonic call-in requirements trigger reporting time pay.”
Id. at 473.
In reaching this conclusion, Ward drew a straight line
from determinations made by the IWC in 1942 and 1943 to
the applicability of reporting time pay to call-in scheduling
practices today. In 1942, reporting time pay requirements
were contemplated as “a penalty” for employers who
arranged “to have plenty of workers around for all
emergencies” without pay; the premise of the requirements
S. Ct. 532, 539 (2019), and J.L. v. Mercer Island Sch. Dist., 592 F.3d
938, 950 (9th Cir. 2010). But federal principles of statutory
interpretation cannot replace state principles of statutory interpretation.
Those cases involved federal subject matter jurisdiction whereas here,
we have diversity jurisdiction. We are guided by how the California
Supreme Court would interpret a California wage order. CPR for Skid
Row, 779 F.3d at 1104. “Under California law, the ‘fundamental task’
of statutory interpretation is ‘to determine the [enacting body’s] intent so
as to effectuate the law’s purpose.’” Id. (quoting People v. Cornett, 274
P.3d 456, 458 (Cal. 2012)).
HERRERA V. ZUMIEZ, INC. 19
was that “[a]llowing a large number of workers to come to
the plant when there is little or no work for them is serious
abuse.” Id. at 471–72 (citing Kidd, Chairman, Comment on
the Rep. of the Wage Bd. for the Canning and Preserving
Industries (July 21, 1942)). In 1943, the year that a reporting
time pay requirement was added to Wage Order 7, a
reporting time pay requirement was also added to the wage
order governing the housekeeping industry. Id. With
respect to that wage order, the IWC considered—and
rejected—“an employer request that employees who resided
at the workplace be paid” fewer hours of reporting time pay
because such employees did not lose time traveling to and
from their workplace. Id. Accordingly, the California Court
of Appeal reasoned in Ward, the contemporary call-in
practice “ha[s] much in common with the specific abuse the
IWC sought to combat by enacting a reporting time pay
requirement,” because it “creates no incentive for employers
to competently anticipate their labor needs and to schedule
accordingly.” Id. at 473. “Like requiring employees to
come to a workplace at the start of a shift without a guarantee
of work, unpaid on-call shifts . . . create a large pool of
contingent workers whom the employer can call on if a
store’s foot traffic warrants it, or can tell not to come in if it
does not, without any financial consequence to the
employers.” Id. At the same time, even where no
transportation cost or significant lost time is incurred, in both
the on-site and call-in shift situations, there are “tremendous
costs on employees” because, among other things, “they
cannot commit to other jobs or schedule classes during those
shifts” and “must make contingent childcare or elder care
arrangements, which they may have to pay for even if they
are not [permitted] to work.” Id.
Therefore, Ward concluded, “[A]n employee need not
necessarily physically appear at the workplace to ‘report for
20 HERRERA V. ZUMIEZ, INC.
work.’ Instead, ‘report[ing] for work’ within the meaning of
the wage order is best understood as presenting oneself as
ordered. ‘Report for work,’ in other words . . . is defined by
the party who directs the manner in which the employee is
to present himself or herself for work—that is, by the
employer.” Id. at 475.
Zumiez’s two principle arguments to the contrary were
addressed by the California Court of Appeal and determined
to be unavailing. Zumiez first argues that the purpose of
reporting time pay is to compensate employees for the
transportation costs of arriving at work, citing to IWC
statements and meeting minutes from the 1940s, 1960s, and
1970s, as well as DLSE policy manuals and opinion letters.
While avoiding the cost of transportation was one motivating
factor, it was never the only one; the IWC explicitly found
that reporting time pay was necessary “in order to
compensate the employee for transportation costs and loss
of time.” Indus. Welfare Comm’n, Minutes of a Meeting of
the Industrial Welfare Commission of the State of California
Held Apr. 5, 1943 (1943). Ward squarely addressed the
“suggestion that reporting time pay was intended only to
compensate employees for travel time and expense,” and
rejected it, reasoning that the argument
[could not] be squared with the exception in
the reporting time pay provision for shifts
cancelled for reasons beyond the employer’s
control. This exception makes sense only if
reporting time pay was intended to impose a
penalty for overscheduling—not if reporting
time pay was intended only to compensate
employees for travel time and expense. Put
simply, employees’ travel time and expenses
HERRERA V. ZUMIEZ, INC. 21
are not reduced because the employer has a
good reason for canceling a shift.
Ward, 243 Cal. Rptr. 3d at 475. Zumiez and Abercrombie
& Fitch Stores, Inc., appearing as an amicus curiae, next
highlight that phone technology existed in 1943 and yet the
wage order does not mention phones. The California Court
of Appeal rejected this argument also. Id. at 470 (“[A]n
omission [of mention of telephonic reporting in Wage Order
7] is not surprising because neither the practice of on-call
scheduling nor the cell phone technology that makes such
scheduling possible existed when the IWC adopted the
reporting time pay requirement in the 1940s.”) (internal
quotation marks and citation omitted). Ward rejected
Zumiez’s (and amicus’s) historical argument and there is no
“persuasive data,” Am. Tel. & Tel. Co., 311 U.S. at 237, to
suggest the California Supreme Court would reach a
different conclusion concerning the regulatory history and
purpose of Wage Order 7.
Third, the California Court of Appeal in Ward
recognized that its conclusion about reporting time pay for
call-in shifts is consistent with Augustus, 385 P.3d 823, a
recent California Supreme Court decision. Ward, 243 Cal.
Rptr. 3d at 475–77. There, the California Supreme Court
held that a policy in which employees were required to carry
a device, such as a pager or cell phone, during their breaks
so that they could be reached by their employer was
“irreconcilable with employees’ retention of freedom to use
rest periods for their own purposes,” and did not satisfy the
wage order’s rest period requirement. Augustus, 385 P.3d at
832. Although Augustus addressed rest periods, not
reporting time pay, the California Court of Appeal’s reliance
on Augustus is pertinent to our prediction concerning
whether the California Supreme Court is likely to disagree
22 HERRERA V. ZUMIEZ, INC.
with Ward. See Ward, 243 Cal. Rptr. 3d at 477. As alleged
by Herrera, Zumiez’s Call-In shift practice imposes similar
significant restrictions on employees’ off-duty time to those
in Augustus, by limiting “how employees can use their time
. . . [30 minutes] before an on-call shift, when they must be
available to contact [Zumiez].” Id.
Fourth, the California Court of Appeal considered the
retail employer’s public policy arguments and found them
unpersuasive. Ward, 243 Cal. Rptr. 3d at 477–79. One of
the policy arguments considered by the California Court of
Appeal is also argued here: that unsuccessful bills the
California Legislature considered during the 2015-16
session would have provided the relief that Herrera seeks.
See S.B. 878, 2015-16 Reg. Sess. (Cal. 2016); Assemb. B.
357, 2015-16 Reg. Sess. (Cal. 2015). That the Legislature
considered bills to address the issue of pay for Call-In shifts,
Zumiez argues, shows that the existing wage order does not
include pay for such shifts through the reporting time pay
provision. The majority in Ward was unpersuaded by the
policy argument based on unsuccessful bills for two reasons:
first, “[t]he proposed legislation went further than the
reporting time pay provision of Wage Order 7,” and
therefore would not have been unnecessarily duplicative of
this construction of the reporting time pay provision; and,
second, before the decision in Ward, federal district courts
“ha[d] split over the applicability of Wage Order 7 to on-call
shifts,” and the legislature may have wanted to resolve the
uncertainty. 5 243 Cal. Rptr. 3d at 479.
Ward also acknowledged a third, related reason to reject
the argument resting on unsuccessful bills, which we also
find compelling: unenacted bills are of “little value” to
5
See supra n.3.
HERRERA V. ZUMIEZ, INC. 23
courts. Sacramento Newspaper Guild v. Sacramento Cty.
Bd. of Supervisors, 69 Cal. Rptr. 480, 492 (Ct. App. 1968)
(“The light shed by such unadopted proposals is too dim to
pierce statutory obscurities.”); see also Rucho v. Common
Cause, 139 S. Ct. 2484, 2524 (2019) (Kagan, J., dissenting)
(“[W]hat all these bills have in common is that they are not
laws.”); Cal. Chamber of Commerce v. State Air Res. Bd.,
216 Cal. Rptr. 3d 694, 713 (Ct. App. 2017) (recognizing
there are “limited circumstances under which an unenacted
bill is relevant”). Arguments based on unenacted bills are
unpersuasive because we do not know why a specific bill
was not passed. A legislature can decide not to enact a bill
because it disagreed with that proposal. But there are a host
of other reasons why a legislature may not enact a bill,
including that the legislature thought the bill superfluous
given existing law.
Again, we are unpersuaded that the California Supreme
Court would reach a different conclusion than did Ward with
regard to Zumiez’s argument concerning the recent
unsuccessful bill. Am. Tel. & Tel. Co., 311 U.S. at 237.
In sum, following Ward, we conclude that, under
subsection (5)(A) of Wage Order 7, a requirement that
employees call their manager thirty minutes to one hour
before a scheduled shift constitutes “report[ing] for work.”
Here, Herrera has 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. See Ward, 243 Cal.
24 HERRERA V. ZUMIEZ, INC.
Rptr. 3d at 473–74. The district court correctly determined
that Herrera has stated a claim for reporting time pay. 6
B. Hours Worked
Herrera also asserts a claim for unpaid wages for the time
that employees spent calling their managers for Call-In
shifts. Employers “shall pay . . . not less than the applicable
minimum wage for all hours worked” pursuant to section
4(B) of Wage Order 7. Cal. Code Regs. tit. 8, § 11070(4)(B).
“‘Hours worked’ means the time during which an employee
is subject to the control of an employer, and includes all the
6
Zumiez also argues that Herrera’s reporting time claim fails
because her complaint did not base the claim on laws that afford a private
right of action. We disagree. Required payments for reporting time are
wages. See, e.g., Murphy, 155 P.3d at 295 (citation omitted); Shine v.
Williams-Sonoma, Inc., 233 Cal. Rptr. 3d 676, 681–82 (Ct. App. 2018);
see also DLSE Operations & Procedures Manual (2007) § 4.5.1.1.1.
Employees have a private right of action to recover any unpaid wages,
Cal. Labor Code § 1194, including reporting time pay, see Ward, 243
Cal. Rptr. 3d at 463–64, 479 (permitting a private right of action for
reporting time pay to proceed). Herrera cited Cal. Labor Code § 1194 in
her complaint. (And, in any event, an “imperfect statement of the legal
theory supporting the claim asserted” is not fatal to a pleading. Johnson
v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam) (reversing
a grant of summary judgment for defendants that was premised on the
plaintiffs’ failure to invoke the specific statute at issue).) Accordingly,
we conclude there is a private right of action to recover reporting time
pay, and Herrera sufficiently stated it in her complaint.
Zumiez likewise contends—for the first time on appeal—that
Herrera’s claim for failure to maintain required records was not based on
laws that afford a private right of action. This is a derivative claim the
parties agree rises or falls with the other claims. See infra III.D.
Moreover, Herrera’s complaint roots this claim in Cal. Labor Code
§ 1174.5 and Wage Order 7. Plaintiffs have a private right of action to
enforce a statute, such as section 1174.5, that requires compliance with
a wage order.
HERRERA V. ZUMIEZ, INC. 25
time the employee is suffered or permitted to work, whether
or not required to do so.” 7 Id. § 11070(2)(G). Zumiez
argues that the calls are not compensable as “hours worked”
under Wage Order 7 because Herrera has not alleged
sufficient facts to establish that employees were subject to
Zumiez’s control during the calls. 8
Whether an employee is subject to her employer’s
control is a fact-intensive inquiry. “The level of the
employer’s control over its employees, rather than the mere
fact that the employer requires the employees’ activity, is
determinative.” Morillion, 995 P.2d at 146; see also Frlekin
v. Apple Inc., S243805, 2020 WL 727813, at *10 (Cal. Feb.
13, 2020) (reaffirming Morillion’s holding and
“emphasiz[ing] that whether an activity is required remains
probative in determining whether an employee is subject to
the employer’s control”). “[A]n employee who is subject to
an employer’s control does not have to be working during
7
All of California’s wage orders contain the same definition of
“hours worked,” with the exception of two wage orders that use
additional language, so we consider interpretations of “hours worked”
from the wage orders with identical definitions. See Morillion, 995 P.2d
at 142.
8
Initially, Zumiez also argued that the time spent making the calls
was de minimis. During the pendency of this appeal, the California
Supreme Court held that California’s wage and hour statutes and
regulations have not adopted the de minimis doctrine. Troester, 421 P.3d
at 1116 (holding that several “off the clock” minutes per shift are
compensable). Therefore, Zumiez no longer argues that the de minimis
rule forecloses Herrera’s claim but purports that it may make further de
minimis arguments after fact development in the district court because
Troester left open the possibility that there could be “circumstances
where compensable time is so minute or irregular that it is unreasonable
to expect the time to be recorded.” Id. We express no views on any such
argument.
26 HERRERA V. ZUMIEZ, INC.
that time to be compensated[.]” Morillion, 995 P.2d at 143
(recognizing that the “suffered or permitted to work” clause
does not limit the “control” clause in the definition of “hours
worked”). For example, in Morillion v. Royal Packing Co.,
where an employer required agricultural workers to meet at
a designated location and travel to and from the fields in
company buses, the California Supreme Court concluded the
workers were subject to their employer’s control during time
spent waiting for and riding the buses. Id. at 147. Time the
workers spent transporting themselves to the employer-
determined departure points, however, was not
compensable. Id. at 141 n.2. That the workers would have
to commute to work even if their use of the company buses
were not mandated did not sway the California Supreme
Court. Id. at 146. Similarly, the court was unpersuaded by
the workers’ ability to “engage in limited activities such as
reading or sleeping on the bus” because the workers could
not “use the time effectively for their own purposes,” such
as to “drop off their children at school, stop for breakfast
before work, or run other errands requiring the use of a car.”
Id. (internal quotation marks and citation omitted).
Zumiez implies the DLSE has stated that calls to an
employer are not compensable. The opinion letter Zumiez
cites, however, addresses the factors to consider in
determining whether “on-call” time for employees working
on “standby” status, such as hospital workers, is sufficiently
restrictive to constitute “hours worked.” Cal. Div. of Labor
Standards Enf’t, Opinion Letter on “On-Call” Time-Beepers
1 (Mar. 31, 1993), https://www.dir.ca.gov/dlse/opinions/
1993-03-31.pdf. That is not the situation here. 9 See Cal.
9
Even if standby pay were at issue, the DLSE left open the question
of whether standby time, during which an employee may have to call her
employer, is compensable. Id. at 4–5. The DLSE maintained, “[t]he
HERRERA V. ZUMIEZ, INC. 27
Code Regs. tit. 8, § 11070(5)(D); see also Ward, 243 Cal.
Rptr. 3d at 468 (treating a required call to an employer as
“reporting for work” under Wage Order 7 and not as standby
work that is not subject to the reporting pay requirements of
Wage Order 7).
Construing the facts alleged in the complaint as true and
in the light most favorable to the non-moving party, see
Fleming, 581 F.3d at 925, Herrera has alleged a claim for
unpaid wages. Herrera alleged facts about Zumiez’s control
over the calls, as well as the timing, frequency, and duration
of the calls: she 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. Although Zumiez attempts to reframe the calls as
merely checking one’s schedule, Herrera alleged that the
calls were scheduled and an employee making a call before
a Call-In shift was doing so because she was scheduled and
required to do so. See Ward, 243 Cal. Rptr. 3d at 478
(rejecting the same argument because, “as pled in plaintiff’s
complaint, [the employer] did not merely require employees
to check their schedules as a necessary predicate to getting
to work on time—it required employees to call in exactly
two hours before the start of on-call shifts,” as part of their
bottom-line consideration is the amount of ‘control’ exercised by the
employer over the activities of the worker.” Id. at 4. Further, the DLSE
emphasized that a factor in determining whether an unpaid “on-call” or
standby requirement for employees is possible is whether there is “a
reasonable and longstanding industry practice” of uncompensated on-
call time. Id. at 5. There is no evidence of such a practice in the retail
industry in the record before us.
28 HERRERA V. ZUMIEZ, INC.
employment). The allegations pled are sufficient to defeat
Zumiez’s motion for judgment on the pleadings.
C. Indemnification
Herrera and putative class members seek
indemnification for phone expenses incurred in calling
Zumiez before Call-In shifts. Under California law, “[a]n
employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee
in direct consequence of the discharge of his or her duties, or
of his or her obedience to the directions of the employer[.]”
Cal. Lab. Code § 2802(a). Zumiez contends Herrera failed
to plead sufficient factual allegations to support the claim.
Ascertaining whether an expense is “necessary”
“depends on the reasonableness of the employee’s choices.”
Gattuso v. Harte-Hanks Shoppers, Inc., 169 P.3d 889, 897
(Cal. 2007). For example, where an employer is required to
indemnify employees’ automobile expenses, the employer
does not have to indemnify unnecessary extra automobile
expenses that are incurred based on the choice of car and
fuel. Id. at 898; see also Townley v. BJ’s Rests., Inc., 249
Cal. Rptr. 3d 274, 279 (Ct. App. 2019).
“[W]hen employees must use their personal cell phones
for work related calls, [California] Labor Code section 2802
requires the employer to reimburse them.” Cochran v.
Schwan’s Home Serv., Inc., 176 Cal. Rptr. 3d 407, 409 (Ct.
App. 2014) (footnote omitted); see also Richie v. Blue Shield
of Cal., No. C-13-2693 EMC, 2014 WL 6982943 (N.D. Cal.
Dec. 9, 2014). If the use of the personal cell phone is
mandatory, then reimbursement is always required,
regardless of whether the employee would have incurred cell
phone expenses absent the job. Cochran, 176 Cal. Rptr. 3d
at 412 (“Otherwise, the employer would receive a windfall
HERRERA V. ZUMIEZ, INC. 29
because it would be passing its operating expenses on to the
employee.”); contra Pyara v. Sysco Corp., No. 2:15-cv-
01208-JAM-KJN, 2017 WL 928715, at *1–2 (E.D. Cal. Mar.
9, 2017) (denying class certification where employees were
provided company-issued phones for business but also
communicated with supervisors with their personal cell
phones); Dugan v. Ashley Furniture Indus., Inc., SA CV 16-
1125 PA (FFMx), 2016 WL 9173459, at *1, 4 n.2 (C.D. Cal.
Nov. 29, 2016) (dismissing claim for indemnification of
personal cell phone expenses made from a workplace where
there was no policy requiring employees to use their
personal cell phones and the employees could have made the
calls from their employer’s store phones). To comply with
section 2802, “the employer must pay some reasonable
percentage of the employee’s cell phone bill.” Cochran, 176
Cal. Rptr. 3d at 412.
Thus, whether Herrera alleged sufficient facts 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. 10
Herrera alleged that phone calls pursuant to the Call-In
policy were required and occurred when employees were not
at the workplace. Although that suggests that she may have
been required to use a personal cell phone and incur related
costs, Herrera failed to include specific, non-conclusory
10
Zumiez protests that Herrera did not allege it was necessary to use
a cell phone to comply with the call-in policy, suggesting that employees
could use free communications services like WhatsApp or Skype. But
using WhatsApp or Skype often requires personal expenses associated
with internet service and a phone or computer, for which a ruling
consistent with Cochran might require reimbursement of a portion of the
bills. 176 Cal. Rptr. 3d at 412–13 (holding that reimbursement of
mandatory work-related cell phone calls is required even where the
employee has an unlimited phone plan).
30 HERRERA V. ZUMIEZ, INC.
facts about how she made the calls or what costs she
incurred. Accordingly, we reverse the district court’s denial
of judgment on the pleadings as to the indemnification claim.
On remand, the district court may grant Herrera leave to
amend the complaint to include more specific allegations.
D. Remaining Claims
Both parties and the district court agree that the
remaining claims—failure to keep required records; failure
to provide accurate wage statements; failure to pay all earned
wages upon separation from employment; unfair business
practices under California’s Unfair Competition Law; and
civil penalties pursuant to PAGA—are derivative of, and rise
or fall with, Herrera’s reporting time pay, minimum wage,
and indemnification claims. Accordingly, we affirm the
denial of the motion for judgment on the pleadings on the
remaining claims, to the extent the district court determines
they relate to the reporting time pay and minimum wage
claims.
IV.
The order denying the motion for judgment on the
pleadings is affirmed with respect to Herrera’s claim for
reporting time pay, failure to pay minimum wage, and the
related remaining claims. The order is reversed with respect
to Herrera’s claim for indemnification. The case is
remanded for further proceedings consistent with this
opinion.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
HERRERA V. ZUMIEZ, INC. 31
BERZON, Circuit Judge, concurring:
I concur in the majority’s opinion in full. I write
separately to respond briefly to Judge Nelson’s concurrence.
Judge Nelson asks future Ninth Circuit panels to
consider certifying the question answered by Ward v. Tilly’s,
Inc., 243 Cal. Rptr. 3d 461 (Ct. App. 2019), review denied
(May 15, 2019), and this opinion to the California Supreme
Court. He also questions the panel’s decision to publish a
precedential opinion in this case. 1 To the degree Judge
Nelson’s suggestions rest on the notion that such
certifications should be routine or that publication of
precedential opinions in diversity cases is inappropriate, his
suggestions bear comment.
We have diversity jurisdiction over this case pursuant to
28 U.S.C. § 1332. Diversity jurisdiction is, of course,
provided for by the Constitution and has been decreed by
Congress. See U.S. Const. art. III, § 2, cl. 1; Judiciary Act
of 1789, Ch. 20 §§ 9-13, 1 Stat. 73, 73-78. Critics of
diversity jurisdiction have long expressed their skepticism of
the propriety and scope of this grant of jurisdiction. See, e.g.,
Felix Frankfurter, Distribution of Judicial Power Between
United States and State Courts, 13 Cornell L.Q. 499, 520–
30 (1928). Although many judges wish diversity jurisdiction
would go away, it has not.
Litigants therefore are entitled to file diversity cases with
us or to remove on diversity grounds cases filed in state
courts. Such cases are not second-class proceedings in the
federal courts, nor do we implicate federalism concerns by
1
Under this court’s internal procedures, any judge on a panel can
require publication. 9th Cir. Gen. Order 4.3.
32 HERRERA V. ZUMIEZ, INC.
treating them coequally with other cases (as long as we apply
state law as required by Erie R. Co. v. Tompkins, 304 U.S.
64 (1938)).
In diversity cases, as in others, “[w]e invoke the
certification [to state court] process only after careful
consideration and do not do so lightly.” Murray v. BEJ
Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir. 2019) (en
banc) (citation and internal quotation marks omitted).
Certification statutes are quite useful, as they allow federal
courts to seek guidance from state courts on difficult and
novel state law issues. But their overuse can overburden state
courts unnecessarily, creating federalism friction of their
own. Such overuse also can foster two-bites-at-the-apple
litigation tactics, where a party files a diversity case in
federal court or removes the case to federal court, and then,
if dissatisfied with the federal court’s interpretation of state
law, presses for certification of the question to the state
Supreme Court. 2 Where, as here, we are following the only
state appellate opinion on point and have no reason to think
the state Supreme Court, which denied review of that
appellate opinion, will disagree, certifying the issue is
unwise.
Nor is there a compelling basis for preferring a
nonprecedential opinion in this circumstance. This court
does often decide state law cases in nonprecedential
memorandum dispositions, as our rulings on state law issues
are not ultimately dispositive—the state courts may later
disagree. But here, where the issue is one likely to recur in
federal courts and we have clear guidance from the state
courts, refusing to publish is supremely inefficient. The legal
2
That concern is not present here, as the plaintiffs filed the case in
federal court.
HERRERA V. ZUMIEZ, INC. 33
issue likely would have to be relitigated in federal district
courts and in this court were we not to issue a precedential
opinion, as the call-in and show-up procedures at issue here
have become increasingly common. 3
In short, no issue of federalism is at stake here that is not
inherent in the existence of diversity jurisdiction.
R. NELSON, Circuit Judge, concurring:
I concur in the panel’s decision affirming in part,
reversing in part, and remanding this case to the district court
because our precedent requires it. The California Court of
Appeal’s opinion in Ward v. Tilly’s, Inc., 243 Cal. Rptr. 3d
461 (Ct. App. 2019), review denied (May 15, 2019), is a
“controlling interpretation,” Tomlin v. Boeing Co., 650 F.2d
1065, 1069 n.7 (9th Cir. 1981), of California law which we
must follow absent “convincing evidence” that the
California Supreme Court would decide the issue differently
than the Ward majority did. Ryman v. Sears, Roebuck & Co.,
505 F.3d 993, 994 (9th Cir. 2007).
But the Ward opinion’s interpretation of “report for
work” is just one possible interpretation of that language in
Wage Order No. 7-2001. That interpretation was only
agreed to by two panel members of the California Court of
Appeal. Ward, 243 Cal. Rptr. 3d at 462–63. The third panel
member, Justice Egerton, dissented and offered a plausible
3
Federal district courts have already faced the “report for work”
question several times. See Segal v. Aquent LLC, 18-cv-346, 2018 WL
4599754, at *5 (S.D. Cal. Sept. 24, 2018); Casas v. Victoria’s Secret
Stores, LLC, CV-14-6412, 2014 WL 12644922, at *6 (C.D. Cal. Dec. 1,
2014).
34 HERRERA V. ZUMIEZ, INC.
alternative interpretation. See id. at 479–80 (Egerton, J.,
concurring and dissenting). And at least one other court
reached the same conclusion that Justice Egerton did. Casas
v. Victoria’s Secret Stores, LLC, No. CV 14-6412-
GW(VBKx), 2014 WL 12644922 (C.D. Cal. Dec. 1, 2014).
Given the differing approaches to the underlying legal
question, and absent certification to the California Supreme
Court, the more prudent course would be not to publish an
opinion in this case. 1 True, our decisions on questions of
state law are not binding on California state courts. See In
re McLinn, 739 F.2d 1395, 1401–02 (9th Cir. 1984) (en
banc). But by deciding this issue in a published opinion, the
Ward majority’s pronouncement of California state law now
binds any federal district court in the Ninth Circuit that might
disagree with Ward—as one previously did, Casas, 2014
WL 12644922, at *3—because district courts do “not have
the authority to ignore circuit court precedent . . . .”
Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1211 (9th Cir.
2016) (internal citations and quotation marks omitted). The
opinion also binds future Ninth Circuit panels on the merits
“in the absence of any subsequent indication from the
[California] courts that our interpretation was incorrect.”
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 884 n.7
(9th Cir. 2000) (internal quotation marks omitted).
The problem, I fear, is that our decision to publish will
preclude California courts from telling us if we got it wrong.
This published opinion may incentivize future plaintiffs to
bring their state law cases in federal court, where the
outcome is likely to be more favorable and more certain.
This incentive, in turn, could prevent cases from percolating
1
The decision to publish requires just one judge to vote that
publication is “necessary.” 9th Cir. Gen. Order 4.3 (2014).
HERRERA V. ZUMIEZ, INC. 35
in the California state courts, foreclosing the state courts
from weighing in on the issue. If California state courts are
deprived the opportunity to provide “subsequent indication
[to us] . . . that our interpretation [of California law] was
incorrect,” In re Watts, 298 F.3d 1077, 1083 (9th Cir. 2002),
cooperative judicial federalism is undermined. 2
Should my fears materialize, future panels may consider
certifying the question to the California Supreme Court. See
Troester v. Starbucks Corp., 680 F. App’x 511, 512–13 (9th
Cir. 2016), certified question answered, 421 P.3d 1114 (Cal.
2018) (certifying state law question to California Supreme
Court that prior Ninth Circuit panel decided in published
opinion); see also Wilson v. Workman, 577 F.3d 1284, 1323
(10th Cir. 2009) (en banc) (Gorsuch, J., dissenting) (“Future
panels of this court likewise remain free to certify the
question . . . .”). We have already certified a state law
question en banc, even without the “sharp split of authority,”
Emery v. Clark, 604 F.3d 1102, 1112 (9th Cir. 2010), typical
of certification cases. See Murray v. BEJ Minerals, LLC,
924 F.3d 1070, 1073 (9th Cir. 2019) (en banc), certified
question accepted, No. OP 19-0304, 2019 WL 2383604
(Mont. June 4, 2019) (“Because of the importance of the
state law question, and the potential of different outcomes in
2
Indeed, we often “decide state law cases in nonprecedential
memorandum dispositions,” J. Berzon Concurrence at 32, without
treating diversity cases as “second-class proceedings,” id. at 31. That is
what we should have done here because a single divided intermediate
appellate state court decision in Ward hardly constitutes “clear guidance
from the state courts” warranting publication. Id. at 32. Publication may
be warranted in many diversity cases, but not where it may well prevent
other state courts from providing the “clear guidance” we seek.
Whatever efficiency federal courts may gain from publication here, see
id., is thus outweighed by risks of undermining cooperative judicial
federalism with state courts.
36 HERRERA V. ZUMIEZ, INC.
federal and state courts, we have elected to certify the issue
to the Montana Supreme Court”).
Ultimately, this important state law question may need
to be certified, not as a matter of course, but to seek clear
guidance and to help “build a cooperative judicial
federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391
(1974). This federalism demands “a proper respect for state
functions, a recognition of the fact that the entire country is
made up of a Union of separate state governments, and a
continuance of the belief that the National Government will
fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.”
Younger v. Harris, 401 U.S. 37, 44 (1971). Such respect
preserves states’ autonomy and protects their power to
interpret their own laws differently than we might otherwise
decide to, provided that they do so within the bounds set by
federal law. Our decision to follow the majority’s decision
in Ward accords with this sound constitutional principle.
Yet by publishing without first seeking the views of the
California Supreme Court, we risk undermining cooperative
judicial federalism, with potentially wide-ranging
consequences.