There are a number of issues related to wage and hour claims including overtime, unpaid wages, attorney’s fees and penalties.
2700.Nonpayment of Wages – Essential Factual Elements (Lab.
Code, §§ 201, 202, 218)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] unpaid wages. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of plaintiff] performed work for [name of defendant];
2. That [name of defendant] owes [name of plaintiff] wages under the
terms of the employment; and
3. The amount of unpaid wages.
“Wages” includes all amounts for labor performed by an employee,
whether the amount is calculated by time, task, piece, commission, or
some other method.
New September 2003; Revised December 2005, December 2013, June 2015
Directions for Use
This instruction is for use in a civil action for payment of wages. Depending on the
allegations in the case, the definition of “wages” may be modified to include
additional compensation, such as earned vacation, nondiscretionary bonuses, or
severance pay.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code and a series of wage orders, adopted by the Industrial Welfare
Commission. All of the wage orders define hours worked as “the time during which
an employee is subject to the control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not required to do so.”
(Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 137 [239
Cal.Rptr.3d 852]; see, e.g., Wage Order 4-2001, subd. 2(K).) The two parts of the
definition are independent factors, each of which defines whether certain time spent
is compensable as “hours worked.” Thus, an employee who is subject to an
employer’s control does not have to be working during that time to be compensated.
(Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582-584 [94 Cal.Rptr.2d 3,
995 P.2d 139].) Courts have identified various factors bearing on an employer’s
control during on-call time. However, what qualifies as hours worked is a question
of law. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838−840
[182 Cal.Rptr.3d 124, 340 P.3d 355].) Therefore, the jury should not be instructed
on the factors to consider in determining whether the employer has exercised
sufficient control over the employee during the contested period to require
compensation.
However, the jury should be instructed to find any disputed facts regarding the
factors. For example, one factor is whether a fixed time limit for the employee to
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respond to a call was unduly restrictive. Whether there was a fixed time limit would
be a disputed fact for the jury. Whether it was unduly restrictive would be a matter
of law for the court.
The court may modify this instruction or write an appropriate instruction if the
defendant employer claims a permissible setoff from the plaintiff employee’s unpaid
wages. Under California Wage Orders, an employer may deduct from an employee’s
wages for cash shortage, breakage, or loss of equipment if the employer proves that
this was caused by a dishonest or willful act or by the gross negligence of the
employee. (See, e.g., Cal. Code Regs., tit. 8, § 11010, subd. 8.)
Sources and Authority
• Right of Action for Wage Claim. Labor Code section 218.
• Wages Due on Discharge. Labor Code section 201.
• Wages Due on Quitting. Labor Code section 202.
• “Wages” Defined, Labor Code section 200.
• Wages Partially in Dispute. Labor Code section 206(a).
• Deductions From Pay. Labor Code section 221, California Code of Regulations,
Title 8, section 11010, subdivision 8.
• Nonapplicability to Government Employers. Labor Code section 220.
• Employer Not Entitled to Release. Labor Code section 206.5.
• Private Agreements Prohibited. Labor Code section 219(a).
• “As an employee, appellant was entitled to the benefit of wage laws requiring an
employer to promptly pay all wages due, and prohibiting the employer from
deducting unauthorized expenses from the employee’s wages, deducting for debts
due the employer, or recouping advances absent the parties’ express agreement.”
(Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1330 [200
Cal.Rptr.3d 315].)
• “The Labor Code’s protections are ‘designed to ensure that employees receive
their full wages at specified intervals while employed, as well as when they are
fired or quit,’ and are applicable not only to hourly employees, but to highly
compensated executives and salespeople.” (Davis, supra, 245 Cal.App.4th at p.
1331, internal citation omitted.)
• “[W]ages include not just salaries earned hourly, but also bonuses, profit-sharing
plans, and commissions.” (Davis, supra, 245 Cal.App.4th at p. 1332, fn. 20.)
• “The Industrial Welfare Commission (IWC) was created in 1913 with express
authority to adopt regulations – called wage orders – governing wages, hours, and
working conditions in the state of California. These wage orders, being the
product of quasi-legislative rulemaking under a broad delegation of legislative
power, are entitled to great deference, and they have the dignity and force of
statutory law.” (Stoetzl v. Department of Human Resources (2019) 7 Cal.5th 718,
724-725 [248 Cal.Rptr.3d 891, 443 P.3d 924], internal citations omitted.)
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• “The two phrases of the definition – ‘time during which an employee is subject
to the control of an employer’ and ‘time the employee is suffered or permitted to
work, whether or not required to do so’ – establish independent factors that each
define ‘hours worked.’ ‘Thus, an employee who is subject to an employer’s
control does not have to be working during that time to be compensated under
[the applicable wage order].’ The time an employee is ‘ “suffered or permitted to
work, whether or not required to do so,” ’ includes time the employee is working
but not under the employer’s control, such as unauthorized overtime, provided
the employer has knowledge of it.” (Hernandez, supra, 29 Cal.App.5th at p. 137,
internal citations omitted.)
• “[A]n employee’s on-call or standby time may require compensation.”
(Mendiola, supra, 60 Cal.4th at p. 840.)
• “ ‘[T]he standard of “suffered or permitted to work” is met when an employee is
engaged in certain tasks or exertion that a manager would recognize as work.
Mere transportation of tools, which does not add time or exertion to a commute,
does not meet this standard.’ We agree with this construction of the ‘suffer or
permit to work’ test.” (Hernandez, supra, 29 Cal.App.5th at p. 142, internal
citation omitted.)
• “[Labor Code] section 221 has long been held to prohibit deductions from an
employee’s wages for cash shortages, breakage, loss of equipment, and other
business losses that may result from the employee’s simple negligence.”
(Hudgins v. Neiman Marcus Group, Inc. (1995) 34 Cal.App.4th 1109, 1118 [41
Cal.Rptr.2d 46].)
• “[A]n employer is not entitled to a setoff of debts owing it by an employee
against any wages due that employee.” (Barnhill v. Robert Saunders & Co.
(1981) 125 Cal.App.3d 1, 6 [177 Cal.Rptr. 803].)
• “In light of the wage order’s remedial purpose requiring a liberal construction,
its directive to compensate employees for all time worked, the evident priority it
accorded that mandate notwithstanding customary employment arrangements,
and its concern with small amounts of time, we conclude that the de minimis
doctrine has no application under the circumstances presented here. An employer
that requires its employees to work minutes off the clock on a regular basis or as
a regular feature of the job may not evade the obligation to compensate the
employee for that time by invoking the de minimis doctrine.” (Troester v.
Starbucks Corp. 5 Cal.5th 829, 847 [235 Cal.Rptr.3d 820, 421 P.3d 1114].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 437-439
Chin et al., California Practice Guide: Employment Litigation, Ch.1-A, Background,
¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B, Coverage
And Exemptions – In General, ¶ 11:121 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.11-D, Payment Of
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Wages, ¶¶ 11:456, 11:470, 11:470.1, 11:512-11.514 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch.11-J, Enforcing
California Laws Regulating Employee Compensation, ¶ 11:1459 (The Rutter Group)
1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies
Under Wage and Hour Laws, § 5.40 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, §§ 250.13[1][a], 250.40[3][a], 250.65 (Matthew Bender)
California Civil Practice: Employment Litigation §§ 4:67, 4:75 (Thomson Reuters)
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