Skylar Ward v. Tilly's, Inc.

This appeal, which follows an order sustaining a demurrer

without leave to amend, concerns the practice of on-call

scheduling. As alleged, on-call scheduling works this way:

Employees are assigned on-call shifts, but are not told until they

call in two hours before their shifts start whether they should

actually come in to work. If they are told to come in, they are

paid for the shifts; if not, they do not receive any compensation

for having been “on call.”

Plaintiff Skylar Ward challenges the on-call scheduling

practices of her former employer, Tilly’s, Inc. (Tilly’s), as violating

wage order No. 7-2001 (codified at California Code of

Regulations, title 8, section 11070; hereafter, Wage Order 7),

which regulates the wages, hours, and working conditions in the

mercantile industry. Among other things, Wage Order 7 requires

employers to pay employees “reporting time pay” for each

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.” Plaintiff contends

that when on-call employees contact Tilly’s two hours before oncall

shifts, they are “report[ing] for work” within the meaning of

the wage order, and thus are owed reporting time pay. Tilly’s

disagrees, urging that employees “report for work” only by

physically appearing at the work site at the start of a scheduled

shift, and thus that employees who call in and are told not to

come to work are not owed reporting time pay.

We conclude that the on-call scheduling alleged in this case

triggers Wage Order 7’s reporting time pay requirements. As we

explain, on-call 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 from Tilly’s unless they

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ultimately are called in to work. This is precisely the kind of

abuse that reporting time pay was designed to discourage. We

therefore reverse the judgment and remand this case to the trial

court for further proceedings.1

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Facts2

Tilly’s is a California corporation based in Irvine,

California. In 2012, plaintiff worked as a sales clerk in a Tilly’s

store in Torrance, California.

During her employment with Tilly’s, plaintiff and other

employees were scheduled for a combination of regular and “oncall”

shifts (also referred to as “call-in” shifts), which had “a

designated beginning time and quitting time.” Employees were

required to contact their stores two hours before the start of their

on-call shifts to determine whether they were needed to work

those shifts. Tilly’s informed its employees to “consider an on-call



1 Because the issue is not properly before us at this early

stage of the proceedings, we do not consider whether our

interpretation of the wage order applies prospectively only, or

retroactively as well. (See Bearden v. U.S. Borax, Inc. (2006)

138 Cal.App.4th 429, 443 [retroactive application of holding

necessarily involves factual and policy issues not before appellate

court on review of a judgment following order sustaining a

demurrer].)

2 A demurrer admits, provisionally for purposes of testing

the pleading, all material facts properly pleaded. (Tindell v.

Murphy (2018) 22 Cal.App.5th 1239, 1247.) Accordingly, we draw

our recitation of the facts from plaintiff’s operative first amended

complaint, the allegations of which we accept as true for purposes

of this appeal. (Fischer v. Time Warner Cable Inc. (2015)

234 Cal.App.4th 784, 788, fn. 1.)

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shift a definite thing until they are actually told they do not need

to come in.”

Tilly’s on-call shifts came in “various forms.” For example:

“a. Employees are scheduled for a regular shift as well as

an on-call shift later that same day. In such instances the

employee is required to physically show up for work at the time of

her regular shift and is told during her regular shift whether she

will also be required to work her on-call shift. [¶] Example:

Employee is scheduled for a regular shift from 11:00 a.m. to

3:00 p.m. and an on-call shift from 3:00 p.m. to 5:00 p.m.

“b. Employees are scheduled for on-call shift[s] earlier in

the day than . . . regular shift[s] scheduled on that same day. In

such instances the employee is required to call in to work,

physically show up to work, or otherwise establish contact with

the employer [two] hours before the scheduled on-call shift (or, if

the on-call shift is scheduled to begin before 10:00 a.m., a[t]

9:00 p.m. the night before) to determine if [s]he is required to

work the scheduled on-call shift. [¶] Example: Employee is

scheduled for an on-call shift from 10:00 a.m. to 12:00 p.m. and a

regular shift from 12:00 p.m. to 4:00 p.m.

“c. Employees are scheduled for on-call shifts on days

they are not scheduled for . . . regular shift[s]. In such instances

the employee is required to call into work, physically show up to

work, or otherwise establish contact with the employer [two]

hours before the scheduled on-call shift (or, if the on-call shift is

scheduled to begin before 10:00 a.m., a[t] 9:00 p.m. the night

before) to determine if she is required to work the scheduled oncall

shift. [¶] Example: Employee is scheduled for an on-call

shift from 10:00 a.m. to 2:00 p.m. with no regular shift that day.”

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Employees were disciplined if they failed to contact their

stores before on-call shifts, or if they contacted the stores late, or

if they refused to work on-call shifts. Discipline included formal

written reprimands and, upon three violations, could include

termination. However, Tilly’s did not include on-call shifts as

part of the employee’s “scheduled day’s work” when calculating

pay unless the employee was required to work the on-call shift;

and it did not consider an employee to have “reported for work” if

he or she called the store prior to an on-call shift, but was told he

or she was not needed.

On-call shifts “take a toll on all employees, especially those

in low-wage sectors. Without the security of a definite work

schedule, workers who must be ‘on call’ are forced to make

childcare arrangements, elder-care arrangements, encounter

obstacles in pursuing their education, experience adverse

financial effects, and deal with stress and strain on their family

life. The ‘on-call’ shifts also interfere with employees’ ability to

obtain supplemental employment in order to ensure financial

security for their families.”

B. The Present Action

Plaintiff filed a putative class action complaint on

September 21, 2015, and filed the operative first amended

complaint (complaint) on July 5, 2016. The complaint alleged

that Wage Order 7 mandates that non-exempt retail employees

be paid “reporting time pay” if either “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” or “an employee is required to report for work a second

time in any one workday and is furnished less than two (2) hours

of work on the second reporting.” (Cal. Code Regs., tit. 8,

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§ 11070, subd. (5).) The complaint alleged that Tilly’s employees

were due reporting time pay for on-call shifts, and that Tilly’s

failure to properly compensate employees for those shifts resulted

in violations of Wage Order 7, Labor Code sections 200–203, 226,

and 226.3, and Business and Professions Code section 17200.

C. Demurrer; Dismissal Order

Tilly’s demurred to the complaint, asserting that it failed to

state a cause of action. It contended that the first cause of action

for reporting time pay failed as a matter of law because requiring

employees to “call[] in to ask whether to report for work” did not

constitute “reporting for work” within the meaning of Wage

Order 7. The second, third, and fourth causes of action were

derivative of the first cause of action and, therefore, failed for the

same reason.

The trial court sustained the demurrer without leave to

amend. It explained: “[T]his court is persuaded that Defendant’s

interpretation of the phrase ‘report to work’ to mean that an

employee physically appears at the workplace is a correct

analysis and interpretation. [¶] . . . [¶] . . . [T]he court finds that

by merely calling in to learn whether an employee will work a

call-in shift, Plaintiff and other employees do not report to work

as contemplated by Wage Order 7. As such, Plaintiff is not

entitled to reporting-time pay under the Wage Order, and the

First Cause of Action for failure to pay reporting time pay fails.

[¶] . . . Plaintiff’s three remaining claims are derivative of the

first and fail for the same reasons.”

Plaintiff timely appealed from the dismissal order.

3



3 The dismissal order was a “written order signed by the

court and filed in the action” and, thus, is appealable. (Code Civ.

Proc., § 581d [“All dismissals ordered by the court shall be in the

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STANDARD OF REVIEW

“ ‘ “On appeal from an order of dismissal after an order

sustaining a demurrer, our standard of review is de novo, i.e., we

exercise our independent judgment about whether the complaint

states a cause of action as a matter of law.” ’ (Los Altos El

Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629,

650.) In reviewing the complaint, ‘we must assume the truth of

all facts properly pleaded by the plaintiffs, as well as those that

are judicially noticeable.’ (Howard Jarvis Taxpayers Assn. v. City

of La Habra (2001) 25 Cal.4th 809, 814.) We may affirm on any

basis stated in the demurrer, regardless of the ground on which

the trial court based its ruling. (Carman v. Alvord (1982)

31 Cal.3d 318, 324.)” (Krolikowski v. San Diego City Employees’

Retirement System (2018) 24 Cal.App.5th 537, 549.)

DISCUSSION

I.

Background

A. Wage Orders and the Industrial Welfare Commission

In 1913, the Legislature established the Industrial Welfare

Commission (IWC) “and—spurred by concerns over inadequate

wages and poor working conditions—delegated to the agency

authority for setting minimum wages, maximum hours, and

working conditions.” (Augustus v. ABM Security Services,

Inc. (2016) 2 Cal.5th 257, 263 (Augustus).) The IWC began

issuing industry- and occupation-specific wage orders in 1916,

and it revised those wage orders from time to time. (Id. at



form of a written order signed by the court and filed in the action

and those orders when so filed shall constitute judgments and be

effective for all purposes, and the clerk shall note those

judgments in the register of actions in the case.”].)

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p. 263.) Although the Legislature defunded the IWC in 2004, its

wage orders remain in effect. (Mendiola v. CPS Security

Solutions, Inc. (2015) 60 Cal.4th 833, 838, fn. 6 (Mendiola).)

Wage orders are issued pursuant to an express delegation

of legislative power, and thus they have the force of law.

(Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th

542, 552–553 (Alvarado), citing Martinez v. Combs (2010)

49 Cal.4th 35, 52–57 (Martinez) [setting forth a brief history of

the IWC].) The IWC’s wage orders originally applied only to

women and children, but since the 1970’s they have applied to all

employees, regardless of age and gender. (Alvarado, supra, at

p. 552; Stats. 1973, ch. 1007, § 8, p. 2004; Stats. 1972, ch. 1122,

§ 13, p. 2156; see also Industrial Welfare Com. v. Superior

Court (1980) 27 Cal.3d 690, 700–701 (Industrial Welfare Com.).)

The specific wage order applicable in this case is

Wage Order 7, which governs “all persons employed in the

mercantile industry,” other than persons employed “in

administrative, executive, or professional capacities.” (Cal. Code

Regs., tit. 8, § 11070, subd. (1)(A).) The “mercantile industry” is

“any industry, business, or establishment operated for the

purpose of purchasing, selling, or distributing goods or

commodities at wholesale or retail; or for the purpose of renting

goods or commodities.” (Ibid., subd. (2)(H).)4

B. Interpretive Principles

Wage orders “are ‘quasi-legislative regulations and are

construed in the same manner as statutes under the ordinary



4 Other industries are governed by different wage orders, but

many of those wage orders contain similar provisions. (Alvarado,

supra, 4 Cal.5th at pp. 552–553.)

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rules of statutory construction.’ ” (Morales v. 22nd Dist.

Agricultural Assn. (2016) 1 Cal.App.5th 504, 539–540; Aleman v.

Airtouch Cellular (2012) 209 Cal.App.4th 556, 568 (Aleman);

Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th

1004, 1027 (Brinker).) Those rules dictate that we begin by

examining the language of the statute (or regulation) itself,

giving the words their ordinary and usual meaning. When the

language is clear, “we apply the language without further

inquiry.” (Aleman, at pp. 568–569.) If the regulation

is ambiguous—that is, it is susceptible to more than one

reasonable interpretation—we may use “ ‘a variety of extrinsic

aids. For example, [we] may consider 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. In addition, the

court may consider the consequences that will flow from a

particular interpretation. [Citations.]’ (Jewish Community

Centers Development Corp. v. County of Los Angeles (2016)

243 Cal.App.4th 700, 708.) A court ‘construing an ambiguous

statute must avoid, if it can, an interpretation that would lead to

absurd consequences.’ ” (Garcia v. American Golf Corp. (2017)

11 Cal.App.5th 532, 543.)

When construing wage orders, “we adopt the construction

that best gives effect to the purpose of the Legislature and the

IWC”—that is, the protection of employees. (Augustus, supra,

2 Cal.5th at p. 262, citing Mendiola, supra, 60 Cal.4th at p. 840

[“ ‘to promote employee protection’ ”]; Martinez, supra, 49 Cal.4th

at pp. 53–54 [describing the Legislature’s concerns]; Industrial

Welfare Com., supra, 27 Cal.3d at p. 702 [noting the “remedial

nature” of legislative enactments and wage orders].) “In

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furtherance of that purpose, we liberally construe the Labor Code

and wage orders to favor the protection of employees.

(E.g., Brinker, at pp. 1026–1027; Murphy [v. Kenneth Cole

Productions, Inc. (2007) 40 Cal.4th 1094,] 1103 [‘statutes

governing conditions of employment are to be construed

broadly’].)” (Augustus, supra, at pp. 262–263.) In doing so, we

accord the IWC’s interpretations “ ‘considerable judicial

deference.’ ” (Ibid.) We “take account of” enforcement policies of

the Division of Labor Standards Enforcement (DLSE), the state

agency that enforces wage orders (ibid.), but because such

policies “are not entitled to deference,” we will adopt the DLSE’s

interpretation only “having independently determined that it is

correct.” (Peabody v. Time Warner Cable, Inc. (2014) 59 Cal.4th

662, 670.)

II.

The Wage Order’s Plain Language

We begin with the regulation’s plain language. Wage

Order 7 requires employers to pay employees reporting time pay,

as follows:

“(A) Each 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,

but in no event for less than two (2) hours nor more than four (4)

hours, at the employee’s regular rate of pay, which shall not be

less than the minimum wage.

“(B) If an employee is required to report for work a second

time in any one workday and is furnished less than two (2) hours

of work on the second reporting, said employee shall be paid for

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two (2) hours at the employee’s regular rate of pay, which shall

not be less than the minimum wage.

“(C) The foregoing reporting time pay provisions are not

applicable when: [¶] (1) Operations cannot commence or

continue due to threats to employees or property; or when

recommended by civil authorities; or [¶] (2) Public utilities fail to

supply electricity, water, or gas, or there is a failure in the public

utilities, or sewer system; or [¶] (3) The interruption of work is

caused by an Act of God or other cause not within the employer’s

control.

“(D) This section shall not apply to an employee on paid

standby status who is called to perform assigned work at a time

other than the employee’s scheduled reporting time.” (Cal. Code

Regs., tit. 8, § 11070, subd. (5), italics added.)

The present dispute turns on the meaning of “report for

work,” a phrase Wage Order 7 uses, but does not define. Both

parties assert this phrase is unambiguous—but they interpret it

in very different ways.

Tilly’s argues that “report[ing] for work” requires an

employee’s physical presence at the workplace at the start of a

scheduled shift. Tilly’s says: “[A]n employee only reports for

work by being present (reporting) at the start of the shift (for

work). That is the plain meaning of Wage Order 7.” Thus, Tilly’s

urges, “the plain meaning of ‘report for work’ requires an

employee to present herself at the start of a shift—not merely to

verify the schedule in advance.” Amicus Abercrombie & Fitch

Stores, Inc. urges us to interpret “report for work” in similar

fashion, suggesting that Wage Order 7 requires reporting time

pay only “if the employee (1) shows up (‘reports’) (2) ready for

work (‘for work’).” By thus interpreting “report[ing] for work” to

12

mean physical presence at the work site, amicus asserts the IWC

“drew and maintained” a “bright-line rule.”

Plaintiff, in contrast, asserts that Wage Order 7 is

triggered by any manner of reporting, whether in person,

telephonic, or otherwise. She says: “There is no specific

language in [the] phrase [report for work] that requires or

necessitates that such reporting be physical in nature. In short,

the face of the wage order does not include an element requiring

that workers physically present themselves at a workplace.”

Thus, plaintiff urges: “In the modern era, where many workers

complete their tasks remotely, use telephones to clock in and

clock out for timekeeping purposes, and, check for shifts

telephonically, a commonsense and ordinary reading of the order

would include the reporting that Plaintiff engaged in in

accordance with Tilly’s policies.”

In our view, the text of Wage Order 7, alone, is not

determinative of the question before us. Some dictionary

definitions of “report” do, as Tilly’s says, have a spatial element—

i.e., “to go to a place or a person and say that you are there”

(Cambridge Dict. [as of Feb. 4, 2019], italics added), or to

“[p]resent oneself formally as having arrived at a particular place

or as ready to do something” (Oxford Dict. [as of Feb. 4, 2019], italics

added). Many other definitions, however, focus on the reporter’s

intent, rather than his or her location—for example, “to present

oneself as ordered” (Random House Webster’s College Dict.

(1992), p. 1142, col. 2, italics added), or “to present (oneself) to a

person in authority, as in accordance with requirements”

(Dictionary.com

13

[as of Feb. 4, 2019], italics added). Accordingly, as a purely

linguistic matter, it is not obvious whether “report[ing] for work”

requires an employee’s presence at a particular place (the work

site) at a particular time (the start of a shift)—or whether it also

may be satisfied by the employee presenting himself or herself in

whatever manner the employer has directed, including, as in this

case, by telephone, two hours before the scheduled start of an oncall

shift. We therefore turn to other interpretive tools for

guidance.

III.

Regulatory History and Purpose

A. Our Interpretation Is Not Limited by the IWC’s

Understanding of Wage Order 7 At the Time It

Was Adopted

Tilly’s and the dissent urge that our interpretation of

“report for work” should be governed by the IWC’s understanding

of the phrase at the time of its adoption in the 1940’s—an

understanding that did not contemplate employees reporting for

work by telephone. We disagree only in part. Telephonic

reporting requirements appear to be of recent vintage, and,

indeed, the cell phone technology that makes such telephonic

reporting feasible did not exist until many decades after the

reporting time pay requirement was enacted. We therefore agree

with Tilly’s and the dissent that “ ‘at least in 1947, the phrase

‘report [for] work’ meant physically showing up.’ ” (Dis. & conc.

opn. of Egerton, J., p. 3, post, citing Casas v. Victoria’s Secret

Stores, LLC (C.D. Cal., Dec. 1, 2014, No. CV 14-6412-GW)

2014 WL 12644922, at *4 (Casas).) Put simply, that is how an

employee reported for work in the 1940’s.

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The contemporaneous understanding of “report for work” is

not dispositive of our analysis, however. To the contrary, our

Supreme Court has held in construing statutes that predate their

possible applicability to new practices or technology, “courts have

not relied on wooden construction of their terms. Fidelity to

legislative intent does not ‘make it impossible to apply a legal

text to technologies that did not exist when the text was

created. . . . Drafters of every era know that technological

advances will proceed apace and that the rules they create will

one day apply to all sorts of circumstances they could not possibly

envision.’ (Scalia & Garner, Reading Law: The Interpretation of

Legal Texts (2012) pp. 85–86.)” (Apple Inc. v. Superior Court

(2013) 56 Cal.4th 128, 137 (Apple Inc.).) Thus, in applying

existing statutes to new circumstances, “ ‘we must maintain our

usual deference to the Legislature in such matters and ask

ourselves first how that body would have handled the problem if

it had anticipated it. [Citation.]’ (People v. Butler (1996)

43 Cal.App.4th 1224, 1229.)” (WorldMark, The Club v. Wyndham

Resort Development Corp. (2010) 187 Cal.App.4th 1017, 1036

(WorldMark), italics added.)

The Supreme Court applied these principles in Apple Inc.,

supra, 56 Cal.4th 128. There, the court considered whether a

provision of the Song-Beverly Credit Card Act (Song-Beverly)

that prohibited retailers from requiring credit card holders “ ‘to

write any personal identification information upon the credit card

transaction form or otherwise’ ” applied to online retail

purchases. (Id. at p. 132.) The court noted that Song-Beverly

had been enacted in 1990, almost a decade before online

commercial transactions became widespread, and thus the

Legislature “at the time it enacted [the provision at issue] . . . did

15

not contemplate commercial transactions conducted on the

Internet.” (Id. at pp. 136–137, italics omitted.) That fact,

however, “alone [was] not decisive” of the statute’s meaning.

Instead, the court looked to “the Legislature’s purpose in enacting

the statute” and “the statutory scheme as a whole” to determine

“whether it is applicable to a transaction made possible by

technology that the Legislature did not envision.” (Id. at pp. 138,

139.) Only after doing so did the court conclude that had the

Legislature in 1990 “been prescient enough to anticipate online

transactions involving electronically downloadable products,” it

would not have intended Song-Beverly’s prohibitions to apply to

them. (Id. at p. 141.)

The Court of Appeal reasoned similarly in WorldMark,

supra, 187 Cal.App.4th 1017. There, the court considered

whether a provision of the Corporations Code that permitted

members of a nonprofit mutual benefit corporation to “ ‘copy the

record of all the members’ names [and] addresses’ ” (id. at

p. 1028, italics added) also entitled members to copy co-members’

e-mail addresses. The court noted that the Legislature “could not

have intended in 1978 that the term ‘addresses’ specifically would

include e-mail addresses, since the concept of widespread and

instantaneous communications by electronic mail was the stuff of

science fiction in 1978.” (Id. at p. 1034.) However, the court

reasoned, the statute’s legislative purpose indicates the

Legislature would have intended the inclusion of e-mail

addresses in the original statute had it anticipated the existence

of e-mail. It explained: “The comments based on the Legislative

Committee summary indicate the purpose of the statute was to

balance a member’s legitimate right to contact the membership

for election contests or purposes reasonably related to the

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member’s interest, against the potential for abuse in allowing too

free an access. [Citation.] [¶] The addition of e-mail addresses

would do nothing to upset the balance that the Legislature

sought to achieve. Such balancing was accomplished by the

process of allowing the corporation to propose a reasonable

alternative. The use of e-mail addresses to achieve this goal does

not affect the balance.” (Id. at pp. 1035–1036.)

As relevant to the present case, Wage Order 7 does not

reference telephonic reporting, nor is there evidence that the IWC

ever considered whether telephonic reporting should trigger the

reporting time pay requirement. To paraphrase our Supreme

Court, such an omission “is not surprising” (Apple Inc., supra,

56 Cal.4th at p. 136) 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 1940’s. Consistent with Apple Inc.

and WorldMark, we therefore next consider whether, had the

IWC been “prescient enough to anticipate” cell phones and

telephonic call-in requirements, it “would have intended” the

reporting time pay requirement to apply.5 6



5 Tilly’s questions the need for this analysis, urging that the

only technology at issue “is the telephone—which has existed

longer than Wage Order 7” and was “ubiquitous” when the IWC

adopted the reporting time pay requirement in the early 1940’s.

We do not agree. Although telephones were in use throughout

the twentieth century, more than one in five households did not

have a telephone available even by 1960, nearly 20 years after

the IWC adopted reporting time pay requirements. (United

States Census Bureau, Historical Census of Housing Tables:

Telephones [as of Feb. 4, 2019].) It is reasonable

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B. Wage Order 7’s History and Purpose

In 1913, the California Legislature established the IWC to

adopt minimum wages, maximum hours, and standard working

conditions for the protection of women and minors.7 The first



to assume that the households that lacked access to telephones

disproportionately were made up of low-wage hourly workers, to

whom Wage Order 7 applied. Moreover, cell phones were not in

widespread use until the end of the twentieth century or the

beginning of the twenty-first century; and even as late as 2011,

the Pew Research Center reported that nearly one in five adults

did not own a cell phone. (Pew Research Center, Americans and

Their Cell Phones (Aug. 15, 2011) [as of Feb. 4,

2019].)

6 We respectfully disagree with the dissent’s suggestion that

by reaching this question, the court is “ ‘drawing up

interpretations that promote the Court’s view of good policy.’ ”

(Dis. & conc. opn. of Egerton, J., p. 1, post, quoting Casas, supra,

2014 WL 12644922, at *5.) As we have said, fidelity to legislative

intent “does not ‘make it impossible to apply a legal text to

technologies that did not exist when the text was created.’ ”

(Apple Inc., supra, 56 Cal.4th at p. 137.)

7 “To assist the IWC in this work, the Legislature gave the

[IWC] broad investigatory powers . . . . If, after investigation, the

IWC determined that the wages paid to women and minors in

any industry were ‘inadequate to supply the cost of proper living,

or the hours or conditions of labor [were] prejudicial to the

health, morals or welfare of the workers,’ the IWC was to convene

a ‘ “wage board” ’ of employers and employees. (Id., § 5, p. 634.)

Based on the wage board’s report and recommendations, and

following a public hearing, the commission was to issue wage

orders fixing for each industry ‘[a] minimum wage to be paid to

women and minors . . . adequate to supply . . . the necessary cost

18

minimum wage orders were issued in early 1916, and by 1923

minimum wage orders had been adopted to cover most industries.

(Dept. of Industrial Relations, Biennium Report (1945–1946)

pp. 50–52.)

The IWC revised nearly all of its industry orders in 1942

and 1943. Recommendations to the IWC provided by the

Canning and Preserving Industries Wage Board in 1942

described the need for reporting time pay as follows: “Allowing a

large number of workers to come to the plant when there is little

or no work for them is serious abuse. The testimony [to the Wage

Board] showed that able employers through the information

collected by their organization eliminated this evil almost

entirely. Incompetent employers are able, however, to make the

worker pay for their incompetency. It is an obvious advantage to

the employer to have plenty of workers around for all

emergencies if he does not have to pay for them. . . . [¶] . . . [¶]

. . . [Reporting time pay] is a penalty which will make the

employers careful to see that there is work and some

compensation for the time and expense of the employee in

reporting.” (Kidd, Chairman, Comment on the Rep. of the Wage

Bd. for the Canning and Preserving Industries (July 21, 1942)

pp. 8–9.)

Effective June 21, 1943, the IWC adopted revised Wage

Order 7, which included a reporting time pay requirement as

follows: “Each day an employee is required to report for work

and does report for work, but is not put to work or works four (4)



of proper living and to maintain [their] health and welfare’ (id.,

§ 6, subd. (a), par. 1, p. 634), the maximum hours of work, and

the standard conditions of labor (id., subd. (a), pars. 2–3, pp. 634–

635).” (Martinez, supra, 49 Cal.4th at pp. 54–55.)

19

hours or less, the employer shall pay the employee for not less

than four (4) hours at fifty cents (50¢) per hour . . . .” (IWC

meeting mins. (Apr. 5, 1943) pp. 39, 45.)8 The IWC explained it

was necessary to require employers to pay employees who

reported but were not put to work because of “the prevalence of

such practices, and in order to compensate the employee for

transportation costs and loss of time.” (Id. at p. 34.)

The same year, IWC also revised the wage order governing

the housekeeping industry (wage order No. 5) to include a

reporting time pay requirement. In connection with the revision,

the IWC considered an employer request that employees who

resided at the workplace be paid only two hours of reporting time

pay, rather than the proposed four hours, because such

employees “do[] not lose the usual time going to and from the

place of employment.” (IWC meeting mins. (Feb. 5, 1943) p. 6.)

The IWC rejected the proposal, adopting a four-hour reporting

time pay requirement for both resident and non-resident

employees. (Id. at p. 26.) Subsequently, the IWC issued a ruling

addressing whether the reporting time pay provision applied to

resident employees; the IWC unanimously ruled that the fourhour

reporting time pay requirement applied to both resident and

non-resident employees. (IWC meeting mins. (Sep. 11, 1943)

p. 18.)

The IWC adopted the current reporting time pay provision

of Wage Order 7 in 1979. In addition to the original language

(which was designated § (5), subdivision (A)), the IWC added



8 This provision was revised in 1947, to replace “at fifty cents

(50¢) per hour” with the phrase “at the employee’s regular rate of

pay, which shall be not less than the minimum wage herein

provided.” (IWC meeting mins. (Feb. 8, 1947) p. 91.)

20

three new provisions, which stated that employees were entitled

to two hours of reporting time pay if they were required to report

for work a second time in one workday but were furnished less

than two hours of work (subd. (B)); reporting time pay was not

owed if operations could not commence for enumerated reasons

beyond the employer’s control (subd. (C)); and reporting time pay

“shall not apply to an employee on paid standby status who is

called to perform assigned work at a time other than the

employee’s scheduled reporting time” (subd. (D)). (Dept. of

Industrial Relations, Div. of Labor Stds. Enforcement, Public

Meeting to Adopt Revised Orders (Sep. 7, 1979) pp. 1–2, 5, 23–24,

127–129.) The IWC explained that “[t]he requirement for

reporting time pay historically has been included in the

commission’s orders on the basis that it is necessary to

employee[s’] welfare that they be notified in advance when

changes in their starting time must be made. It has been deemed

a [maximum] of four hours’ pay adequate to encourage proper

notice and scheduling. [¶] The commission received no

compelling evidence, and concluded there was no rationale to

warrant making any change in the provisions of this section,

which date back to 1942.” (Id. at pp. 55–56, italics added; see

also id. at pp. 127, 129–130.)

This history thus reveals, as our Supreme Court has said,

that the IWC’s purpose in adopting reporting time pay

requirements was two-fold: to “compensate employees” and

“ ‘encourag[e] proper notice and scheduling.’ ” (Murphy, supra,

40 Cal.4th at pp. 1111–1112.)9 With these twin goals in mind, we



9 These twin goals have repeatedly been reflected in

enforcement guidance provided by the Department of Industrial

Relations (DIR) and the DLSE. The DIR noted in a 1965

21

turn to the question before us—whether, had the IWC considered

the issue, it would have concluded that telephonic call-in

requirements trigger reporting time pay.

C. The Wage Order’s History and Purpose Are Consistent

With Requiring Reporting Time Pay for On-Call

Shifts

We conclude that had the IWC confronted the issue, it

would have determined, as we do, that the telephonic call-in

requirements alleged in the operative complaint trigger reporting

time pay. We note as an initial matter that the on-call practices

plaintiff alleges have much in common with the specific abuse the

IWC sought to combat by enacting a reporting time pay

requirement in 1942. Like requiring employees to come to a

workplace at the start of a shift without a guarantee of work,

unpaid on-call shifts are enormously beneficial to employers:

They create a large pool of contingent workers whom the

employer can call on if a store’s foot traffic warrants it, or can tell



enforcement manual that the “primary purpose” of the reporting

time pay requirement is “to guarantee at least partial

compensation for employees who expect to work a specified

number of hours and who are deprived of that amount by the

employer.” The DLSE similarly noted in a 1978 manual, stating

that the “primary purpose” of the reporting time pay requirement

was to guarantee at least partial compensation “for employees

who report to work expecting to work a specified number of

hours, and who are deprived of that amount because of

inadequate scheduling or lack of proper notice by the employer.”

However, as we have noted, the DLSE’s interpretations “are not

entitled to deference,” and thus we will adopt them only if we

independently determine they are correct. (See Peabody v. Time

Warner Cable, Inc., supra, 59 Cal.4th at p. 670.)

22

not to come in if it does not, without any financial consequence to

the employers. This permits employers to keep their labor costs

low when business is slow, while having workers at the ready

when business picks up. It thus creates no incentive for

employers to competently anticipate their labor needs and to

schedule accordingly.

Like other kinds of contingent shifts, unpaid on-call shifts

impose tremendous costs on employees. Because Tilly’s requires

employees to be available to work on-call shifts, they cannot

commit to other jobs or schedule classes during those shifts. If

they have children or care for elders, they must make contingent

childcare or elder care arrangements, which they may have to

pay for even if they are not called to work. And they cannot

commit to social plans with friends or family because they will

not know until two hours before a shift’s start whether they will

be available to keep those plans. In short, on-call shifts

significantly limit employees’ ability to earn income, pursue an

education, care for dependent family members, and enjoy

recreation time.

Further, because employees must contact Tilly’s two hours

before the start of on-call shifts, their activities are constrained

not only during the on-call shift, but two hours before it as well.

That is, at the time employees are required to call in to find out

whether they will be required to work on-call shifts, they cannot

do things that are incompatible with making a phone call, such

as sleeping, watching a movie, taking a class, or being in an area

without cell phone service. For example, consider an employee

who has been scheduled for an on-call shift from 10:00 a.m. to

12:00 p.m., followed by a scheduled shift from 12:00 p.m. to

4:00 p.m. If Tilly’s tells the employee at 8 a.m. that she is not

23

needed for the on-call shift, she will not be paid anything for that

shift. Nevertheless, she will necessarily have forgone sleeping,

working another job, taking a class, etc. both at 8 a.m. and

between 10:00 a.m. and 12:00 p.m. In short, the employer will

have imposed to some degree on four hours of the employee’s

time—an imposition for which it will not owe the employee any

compensation.

For all of these reasons, we conclude that requiring

reporting time pay for on-call shifts is consistent with the IWC’s

goals in adopting Wage Order 7. Reporting time pay requires

employers to internalize some of the costs of overscheduling, thus

encouraging employees to accurately project their labor needs

and to schedule accordingly. Reporting time pay also partially

compensates employees for the inconvenience and expense

associated with making themselves available to work on-call

shifts, including forgoing other employment, hiring caregivers for

children or elders, and traveling to a worksite. Finally, reporting

time pay makes employee income more predictable, by

guaranteeing employees a portion of the wages they would earn if

they were permitted to work the on-call shifts.

Tilly’s urges that reporting time pay for on-call shifts is

inconsistent with the IWC’s intent, which it characterizes solely

as “ ‘compensat[ing] the employee for transportation costs and

loss of time.’ ” Tilly’s contends that “making a phone call to check

one’s schedule is not something that the IWC intended to

compensate, since it does not involve transportation costs or loss

of time in the same way that actually reporting for work does.”

There are several problems with Tilly’s analysis, most

significantly that it reads one of the IWC’s primary purposes—

“encourag[ing] proper notice and scheduling”—out of the

24

legislative and regulatory history. As we have said, the IWC

identified its intention to encourage proper notice and scheduling

when it first adopted a reporting time pay requirement in 1943,

and it reiterated those concerns subsequently.

Moreover, while time spent commuting to work

undoubtedly was one of the things the IWC had in mind when it

referred to “loss of time,” it was not the only one. Indeed, had the

IWC intended to compensate employees only for commuting time,

it logically would have keyed reporting time pay to distance

traveled, such that employees who lived greater distances from

work would receive more reporting time pay than employees who

lived closer to work. Instead, the IWC tied reporting time pay

not to an employee’s commuting time, but to the length of the

shift the employee was expecting to work. Significantly, it also

allowed reporting time pay of up to four hours—an amount far in

excess of the time it takes most employees to commute to and

from work. And, as we have said, it specifically declined to limit

reporting time pay for employees who resided at the workplace,

who thus “do[] not lose the usual time going to and from the place

of employment.” (IWC meeting mins. (Feb. 5, 1943) p. 6.) This

suggests that the “loss of time” the IWC was concerned about was

not solely commuting time, but also lost work time and the

accompanying loss of income.

Further, the contingent nature of an on-call shift means

that some employees—namely, those who commute more than

two hours to work—will incur transportation costs

notwithstanding the two-hour window. Employees who must

commute more than two hours, either because they cannot afford

housing close to work or must rely on public transportation to get

to work, will have to begin traveling to work before they know

25

whether they will actually work their on-call shifts, thus

incurring both transportation expenses and lost commuting time.

And, even employees whose commute is less than two hours may

have to begin readying themselves for work (ironing a uniform,

dressing for work, etc.) before they know whether they will work

on-call shifts.

Finally, Tilly’s suggestion that reporting time pay was

intended only to compensate employees for travel time and

expense also cannot 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 are not reduced because the

employer has a good reason for canceling a shift.

Based on the foregoing, we conclude, contrary to the trial

court, that an employee need not necessarily physically appear at

the workplace to “report for 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,

does not have a single meaning, but instead 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.

As thus interpreted, the reporting time pay requirement

operates as follows. If an employer directs employees to present

themselves for work by physically appearing at the workplace at

the shift’s start, then the reporting time requirement is triggered

by the employee’s appearance at the job site. But if the employer

directs employees to present themselves for work by logging on to

26

a computer remotely, or by appearing at a client’s job site, or by

setting out on a trucking route, then the employee “reports for

work” by doing those things. And if, as plaintiff alleges in this

case, the employer directs employees to present themselves for

work by telephoning the store two hours prior to the start of a

shift, then the reporting time requirement is triggered by the

telephonic contact.10

IV.

Reporting Time Pay for On-Call Shifts Is

Consistent With Supreme Court Authority

Our conclusion that employees may be owed reporting time

pay for on-call shifts is consistent with our Supreme Court’s

recent decision in Augustus, supra, 2 Cal.5th 257. The plaintiffs

in that case were security guards who were required to keep their

pagers and phones on during 10-minute rest breaks and to

respond to calls as needed. (Id. at p. 260.) Plaintiffs sued,

asserting that by requiring them to remain on-call during breaks,

the employer was not providing them with true “rest” breaks.

The trial court granted the plaintiffs’ motion for summary

adjudication, concluding that “an on-duty or on-call break is no

break at all.” (Id. at p. 261.) The Court of Appeal disagreed and



10 Our conclusion is consistent with Tilly’s examples that an

attorney may “report” (appear) telephonically at the time of a

hearing, but a prisoner must “report” (surrender) in person. The

relevant distinction is not, as Tilly’s suggests, when the

individual reports, but whether he does so in the manner

directed. That is, an attorney may appear telephonically if (and

only if) the court has given him or her permission to do so;

prisoners must surrender in person because they have been so

instructed.

27

reversed, concluding that “ ‘simply being on call’ ” is not

inconsistent with a period of rest. (Id. at p. 262.)

The Supreme Court granted review and reinstated the

grant of summary adjudication for the security guards. It

observed that applicable law required hourly employees be

provided “rest periods,” but it did not define the term.

Nonetheless, the court said, “one cannot square the practice of

compelling employees to remain at the ready, tethered by time

and policy to particular locations or communications devices,

with the requirement to relieve employees of all work duties and

employer control during 10-minute rest periods.” (Augustus,

supra, 2 Cal.5th at p. 269.) The court explained: “Although

Wage Order 4[11]

is silent as to on-call rest periods, our

construction of [the rest period requirement] cannot be reconciled

with permitting employers to require employees to remain on

call. As we explained, a rest period means an interval of time

free from labor, work, or any other employment-related duties.

And employees must not only be relieved of work duties, but also

be freed from employer control over how they spend their time.

[Citation.] . . . . [¶] . . . [¶]

“. . . Whatever else being on call entails in the context of a

required rest break, that status compels employees to remain at

the ready and capable of being summoned to action [citation].



11 Augustus concerned Wage Order 4, which governs

individuals employed “in professional, technical, clerical,

mechanical, and similar occupations.” (Cal. Code Regs., tit. 8,

§ 11040, subd. (1).) Wage Order 4 and Wage Order 7 have

identical rest period and reporting time pay requirements.

(Compare 8 Cal. Code Regs., § 11040, subds. (5), (12), and

§ 11070, subds. (5), (12).)

28

Employees forced to remain on call during a 10-minute rest

period must fulfill certain duties: carrying a device or otherwise

making arrangements so the employer can reach the employee

during a break, responding when the employer seeks contact with

the employee, and performing other work if the employer so

requests. These obligations are irreconcilable with employees’

retention of freedom to use rest periods for their own purposes.

[Citation.]

“This very case provides an apt example. The trial court

determined it was undisputed that [the employer’s] policy

required plaintiffs to keep radios and pagers on, remain vigilant,

and respond if the need arose. Given these intersecting realities,

on-call rest periods do not satisfy an employer’s obligation to

relieve employees of all work-related duties and employer control.

In the context of a 10-minute break that employers must provide

during the work period, a broad and intrusive degree of control

exists when an employer requires employees to remain on call

and respond during breaks. [Citation.] An employee on call

cannot take a brief walk—five minutes out, five minutes back—if

at the farthest extent of the walk he or she is not in a position to

respond. Employees similarly cannot use their 10 minutes to

take care of other personal matters that require truly

uninterrupted time—like pumping breast milk (see [Labor Code]

§ 1030 [regarding use of break time for expressing milk for an

infant]) or completing a phone call to arrange child care. The

conclusion that on-call rest periods are impermissible is not only

the most logical in light of our construction of Wage Order 4,

subdivision 12(A), but is the most consistent with the protective

purpose of the Labor Code and wage orders.” (Augustus, supra,

2 Cal.5th at pp. 269–271.)

29

We recognize that Augustus addressed rest periods, not

reporting time pay, and thus it does not control the case before

us. It nonetheless is instructive. The court’s holding in Augustus

was grounded in its conclusion that if an employer limits the

kinds of activities employees can engage in during off-duty time,

they are not truly off-duty. That analysis plainly has resonance

in this case, where, as we have described, the employer’s on-call

requirement limits how employees can use their off-duty time—

and does so not merely for 10 minutes (during breaks which, by

their nature, impose “practical limitations on an employee’s

movement” (Augustus, supra, 2 Cal.5th at p. 270)), but instead

over several hours before and during on-call shifts. Indeed, as we

have said, Tilly’s call-in requirement imposes significant

limitations on how employees can use their time both two hours

before an on-call shift, when they must be available to contact

Tilly’s, and during the on-call shift itself, when employees must

be available to work. As such, the call-in requirement is

inconsistent with being off-duty, and thus triggers the reporting

time pay requirement.

V.

Tilly’s Public Policy Arguments

Are Not Persuasive

Notwithstanding the foregoing, Tilly’s suggests that

requiring reporting time pay for on-call shifts is unworkable and

will have absurd unintended consequences. These claims are

without merit.

First, Tilly’s suggests that if calling in two hours before an

on-call shift triggers reporting time pay, employers will have to

pay employees who are told to come to work but then fail to show

up. Tilly’s urges: “Consider the case of an employee who calls at

30

8 a.m. and learns he is expected to work at 10 a.m., but who is

sick that day or for some other reason does not actually go to the

store for work. According to Appellant, that employee has

nevertheless ‘reported for work,’ simply because the employee

made the phone call. . . . [¶] . . . [¶] Appellant’s interpretation of

the Wage Order thus leads to absurd results: if calling in

advance qualifies as reporting for work, then the employee is free

to be absent from work at the start of his shift and still receive

reporting-time pay.”

Tilly’s contention rests on a misreading of the statutory

language. Wage Order 7 requires reporting time pay if 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.” (Cal. Code Regulations., tit. 8,

§ 11070, subd. 5(A), italics added.) In other words, an employee

is owed reporting time pay only if upon reporting for work, she is

denied the opportunity to work. In Tilly’s example, the employee

was not denied the opportunity to work—to the contrary, she was

directed to work the on-call shift. She thus has no colorable claim

to reporting time pay.

Second, Tilly’s suggests that if on-call shifts trigger

reporting time pay, the employees will be entitled to

compensation merely for ascertaining their schedules—

something Tilly’s says has never been compensable. Tilly’s

frames the issue this way: “Employees undoubtedly must

ascertain when they are supposed to work. . . . Sometimes

schedules will be posted weeks or days in advance. And

sometimes, as here, employees will not know their schedules

until they call in, either two hours beforehand or the day before.

No matter how far in advance it takes place, however, the act of

31

ascertaining one’s working schedule does not constitute reporting

for work.”

Tilly’s assertion is partially correct: Employers do not

trigger reporting time pay requirements merely by expecting

employees to apprise themselves of their schedules. It goes

without saying that an employee cannot arrive at work on time

without knowing when his or her shift begins. But as pled in

plaintiff’s complaint, Tilly’s 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, and it “treat[ed] calling in late for an

on-call shift or failing to call in for an on-call shift the same as

missing a regularly scheduled shift.” In other words, under

Tilly’s on-call regime, failing to call in two hours before an on-call

shift was an independent disciplinary offense, separate and apart

from not coming to work on time. As such, Tilly’s call-in

procedure required far more of employees than merely

“ascertain[ing] when they are supposed to work,” and thus it

properly triggered the reporting time pay requirement.

Third, Tilly’s contends that permitting employees to earn

reporting time pay for calling in prior to the start of a shift is

unworkable because “there is no limit to how far in advance of a

shift an employee might ‘report for work’ . . . . If [an employee]

called in two days before, or three days before, or a week before,

or two weeks before, in each case she would be performing exactly

the same act: ascertaining by phone, in advance of a shift,

whether to actually report for it.” In so urging, Tilly’s attacks a

straw man because it is the employer, not the employee, who

32

directs how employees report for work.12 As we have said, we do

not hold that employees are entitled to reporting time pay

whenever they contact their employer to determine what their

schedule is. We hold only that if, as plaintiff alleges in this case,

the employer requires the employee to call in two hours before

the start of a shift, and the employee does so but “is not put to

work or is furnished less than half said employee’s usual or

scheduled day’s work,” then the employer is liable for reporting

time pay.

Fourth, Tilly’s contends that applying Wage Order 7 to oncall

shifts is unworkable because the regulation does not specify

how much advance notice employees must be given to avoid a

reporting time penalty. We agree that the wage order potentially

creates some difficult line-drawing challenges, but we need not

resolve all of those challenges to answer the limited question

before us: whether the particular labor practice Tilly’s is alleged

to have engaged in implicates the reporting time pay provision of

Wage Order 7. (E.g., Verdugo v. Target Corp. (2014) 59 Cal.4th

312, 316, fn. 1 [“we do not resolve abstract questions of law but

rather address only issues that ‘are presented on a factual

record’ ”].)13



12 The so-called “absurd outcomes” amicus posits miss the

mark for the same reason. As we have said, the reporting time

pay requirement is triggered when an employee calls at the

employer’s direction to confirm an on-call shift. It is not triggered

“anytime an employee . . . call[s]-in or otherwise check[s] [his or

her] schedule.”

13 Indeed, the need to draw the kinds of lines Tilly’s suggests,

by determining how much advance notice is necessary to avoid a

reporting time penalty, may never be before a court for the

33

Finally, both Tilly’s and amicus make much of the

California Legislature’s recent consideration of predictive

scheduling bills, which would require employers to pay employees

one hour of pay for each shift change made with less than one

week’s notice, and two hours or four hours of pay for each shift

change made with less than 24 hours’ notice or for each on-call

shift for which the employee is required to be available but is not

called in to work. (See Assem. Bill No. 357 (2015–2016 Reg.

Sess.); Sen. Bill No. 878 (2015–2016 Reg. Sess.).) Tilly’s and

amicus contend that these predictive scheduling bills would have

been entirely unnecessary if on-call shift pay were already

required by wage order. We do not agree. The proposed

legislation went further than the reporting time pay provision of

Wage Order 7, requiring employees to be compensated for most

schedule changes made with less than a week’s notice. Thus,

although the proposed legislation would have compensated

employees for on-call shifts, its reach was far broader. Moreover,

as the parties have noted, lower courts have split over the

applicability of Wage Order 7 to on-call shifts, with at least one

federal district court (as well as the trial court in this case)

concluding that reporting time pay was not owed for call-in



simple reason that employers may not find four-hour, or eighthour,

or 24-hour call-in shifts economically desirable. That is,

two-hour call-in periods give employers flexibility to match the

size of the work force to the number of customers in a store at

any given time. A longer call-in period likely would not be

similarly advantageous from an employer’s point of view because

it is not clear that employers would be better able to predict

staffing needs eight hours before a shift than they would, say, a

week before a shift.

34

shifts.14 In light of this uncertainty, it is unsurprising that

legislators included on-call shift pay as part of broader predictive

scheduling legislation. Their decision to do so, however, tells us

nothing about the meaning of existing law. Indeed, as Tilly’s

concedes, “ ‘[u]npassed bills, as evidence of legislative intent,

have little value.’ ” (Apple Inc., supra, 56 Cal.4th at p. 146.)



14 See Casas, supra, 2014 WL 12644922, p. 5 [employee

“ ‘report[s] for work’ ” only by “actually, physically show[ing] up

at the workplace”]; Bernal v. Zumiez, Inc. (E.D. Cal. Aug. 17,

2017) 2017 WL 3585230, p. 3 [telephonically calling in “falls

under the ambit of activity enforceable by the wage order”]; Segal

v. Aquent LLC (S.D. Cal., Sep. 24, 2018, No. 18cv346-LA)

2018 WL 4599754 [adopting Bernal’s analysis].

The judgment of dismissal and order sustaining the demurrer are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. Plaintiff is awarded her appellate costs.