California Civil Jury Instructions (CACI)

2700. Nonpayment of Wages - Essential Factual Elements (Lab. Code, §§ 201, 202, 218)

[Name of plaintiff] claims that [name of defendant] owes [him/her] 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.

Directions for Use

This instruction is intended 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.

The court may modify this instruction or write an appropriate instruction in cases where 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.)

If the defendant disputes the existence of an employment relationship, the court may consider modifying and giving CACI No. 3704, Existence of "Employee" Status Disputed, in the Vicarious Responsibility series.

Sources and Authority

Labor Code section 218 provides, in part: "Nothing in this article shall limit the right of any wage claimant to sue directly or through an assignee for any wages or penalty due. . . ."

Labor Code section 201 provides, in part: "If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately."

Labor Code section 202 provides, in part: "If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting."

Labor Code section 200 defines "wages" as including "all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. [¶] . . . 'Labor' includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment."

Labor Code section 206(a) provides: "In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed."

Labor Code section 221 provides: "It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee."

"[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].)

Labor Code section 220 provides: (a) Sections 201.5, 201.7, 203.1, 203.5, 204, 204a, 204b, 204c, 204.1, 205, and 205.5 do not apply to the payment of wages of employees directly employed by the State of California. Except as provided in subdivision (b), all other employment is subject to these provisions.

(b) Sections 200 to 211, inclusive, and Sections 215 to 219, inclusive, do not apply to the payment of wages of employees directly employed by any county, incorporated ity, or town or other municipal corporation. All other employments are subject to these provisions.

California Wage Orders provide: "No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee." (Cal. Code Regs., tit. 8, § 11010, subd. 8.)

"[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].)

Labor Code section 206.5 provides, in part: "No employer shall require the execution of any release of any claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of such wages has been made."

Labor Code section 219(a) provides, in part: "[N]o provision of [Labor Code sections 200 through 243] can in any way be contravened or set aside by a private agreement, whether written, oral, or implied."

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, § 335, pp. 327-329; id. (2002 supp.) at § 335, pp. 341-343

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)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Wage and Hour, §§ 4:67, 4:76, pp. 51, 55-56

(Revised December 2005)