310 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 357 Id. at 1144. 358 Townley v. BJ’s Rests., Inc., 37 Cal. App. 5th 179 (2019). 359 Oliver v. Konica Minolta Business Solutions U.S.A., Inc., 51 Cal. App. 5th 1 (2020) (“Defendant concedes that if service technicians are owed wages for their commute time, then they are also owed reimbursement for commuting mileage under section 2802.”). 360 See, e.g., Morel v. HTNB Corp., 2022 WL 17170944, at *4 (S.D. Cal. Nov. 21, 2022) (granting employer’s motion to dismiss section 2802 claim with leave to amend; “[the plaintiff] fails to allege if or how he and the putative class members were required to use phones, data plans, or internet access that were not provided by the company, or how [the employer] required him or the putative class members to incur expenses related to home office space, mortgage or rent, property taxes, homeowner's insurance, and utilities. For example, if [the employee] could have used company provided phones, data plans, or internet access, then [the employee’s] choice to use a personal phone, data plan, or internet access may have been unreasonable.”). 361 Williams v. Amazon.com Servs. LLC, 2023 WL 2396330, *2 (N.D. Cal. March 7, 2023). 362 AB 2588, 2020 bill adding Lab. Code § 2802.1. 363 S. Cal. Pizza Co., LLC v. Certain Underwriters at Lloyd’s London, 40 Cal. App. 5th 140 (2019). 364 Lab. Code § 226.2. 365 Lab. Code § 226.2 (first paragraph). 366 This relatively new statute has survived a constitutional challenge. Nisei Farmers League v. California Labor & Workforce Dev. Agency, 30 Cal. App. 5th 997 (2019) (section 226.2 is not facially unconstitutional as the language of the statute is sufficiently clear to provide adequate notice of the conduct the statute prohibits or requires). 367 Id. at 1014. 368 Vaquero v. Stoneledge Furniture, LLC, 9 Cal. App. 5th 98, 110 (2017) (“We agree with Bluford that Wage Order No. 7 requires employers to separately compensate employees for rest periods if an employer’s compensation plan does not already include a minimum hourly wage for such time. … All of the federal courts that have considered this issue of California law have reached a similar conclusion and have held employers must separately compensate employees paid by the piece for nonproductive work hours.”). 369 See generally Muldrow v. Surrex Solutions Corp., 208 Cal. App. 4th 1381, 1394, 1396 (2012). 370 DLSE Enforcement Policies and Interpretations Manual § 2.5.4 (2002). 371 Areso v. CarMax, Inc., 195 Cal. App. 4th 996, 1009 (2011) (paying salespersons a uniform payment per product sold irrespective of sales price qualifies as commission, because commissioned wages can be based proportionately on the amount or value sold). 372 Lab. Code § 204.1. 373 195 Cal. App. 4th at 1008. 374 Muldrow v. Surrex Solutions Corp., 208 Cal. App. 4th 1381, 1392, 1396 (2012). 375 DLSE Opinion Letter 2003.04.30 (noting that sometimes commissions payments can be considered not yet earned where the customer’s payment may be required to complete a sale and where post-sale servicing may be part of salesperson’s duty to earn the commission). 376 DLSE Opinion Letter 2002.12.09-2, at 2. See also Peabody v. Time Warner Cable, Inc., 59 Cal. 4th 662, 668 (2014) (commissions are owed only when they have been earned, even if it is on a monthly, quarterly, or less frequent basis). Under section 204, earned commissions must be paid at least as frequently as semi-monthly. 377 Sciborski v. Pac. Bell Directory, 205 Cal. App. 4th 1152, 1171 (2012). 378 DeLeon v. Verizon Wireless, LLC, 207 Cal. App. 4th 800, 803 (2012) (“Verizon Wireless may legally advance commission payments to its retail sales representatives before completion of all conditions for payment, and charge back any excess advance over commissions earned against future advances should the conditions not be satisfied.”). 379 DLSE Opinion Letter 2002.06.13, at 2 (permissible to recover from future commissions advances for sales not completed). See also De Leon v. Verizon Wireless, LLC, 207 Cal. App. 4th 800 (2012) (upholding employer policy of advancing commissions that were earned only when customer did not discontinue cell phone service during applicable chargeback period of up to one year); Steinhebel v. Los Angeles Times, 126 Cal. App. 4th 696 (2005) (upholding employer policy of advancing commissions to subscription salespeople and charging advance back if subscriber cancels within 28 days). 380 Koehl v. Verio, 142 Cal. App. 4th 1313 (2006) (upholding compensation plan whereby employer could recover unearned commissions if certain conditions were not met, where recovery was authorized in writing by employee and did reduce standard base pay; Labor Code section 224 creates a broad exception to anti-chargeback rule stated in Labor Code section 221). 381 Hudgins v. Neiman Marcus Grp., Inc., 34 Cal. App. 4th 1109, 1112 (1995) (commission plan that accounted for returns of merchandise originally sold was not enforceable to extent that plan prorated “unidentified returns” that could not be attributed to individual sales persons). 382 Id. at 1123. See also Aguilar v. Zep, 2014 WL 4245988, at *16 (N.D. Cal. Aug. 27, 2014) (“Even if a contract exists ..., an employer cannot shift the cost of doing business to an employee ... . [Where] routine business expenses that shift the cost of doing business to the employee [are deducted from the employees’ commission-based compensation,] ... [t]he fact that the [employees] consented to the practice is irrelevant.”). 383 Hudgins, 34 Cal. App. 4th at 1122 (emphasis in original).
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