California Civil Jury Instructions (CACI) (2017)
2704. Damages - Waiting-Time Penalty for Nonpayment of Wages (Lab. Code, §§ 203, 218)Download PDF
2704.Damages—Waiting-Time Penalty for Nonpayment of Wages
(Lab. Code, §§ 203, 218)
If you decide that [name of plaintiff] has proved [his/her] claim against
[name of defendant] for [unpaid wages/[insert other claim]], then [name of
plaintiff] may be entitled to receive an award of a civil penalty based on
the number of days [name of defendant] failed to pay [his/her] [wages/
other] when due.
To recover the civil penalty, [name of plaintiff] must prove all of the
1. The date on which [name of plaintiff]’s employment ended;
2. [That [name of defendant] failed to pay all wages due by [insert
2. [The date on which [name of defendant] paid [name of plaintiff] all
3. [Name of plaintiff]’s daily wage rate at the time [his/her]
employment with [name of defendant] ended; and
4. That [name of defendant] willfully failed to pay these wages.
The term “wages” includes all amounts for labor performed by an
employee, whether the amount is calculated by time, task, piece,
commission, or some other method.
The term “willfully” means that the employer intentionally failed or
refused to pay the wages.
New September 2003; Revised June 2005
Directions for Use
This instruction is intended to instruct the jury on factual determinations required to
assist the court in calculating waiting time penalties under Labor Code section 203.
The court must determine when ﬁnal wages are due based on the circumstances of
the case and applicable law—see Labor Code sections 201 and 202. If there is a
factual dispute, for example, whether plaintiff gave advance notice of his or her
intention to quit, or whether payment of ﬁnal wages by mail was authorized by
plaintiff, the court may be required to give further instruction to the jury. Final
wages generally are due on the day an employee is discharged by the employer, but
are not due for 72 hours if an employee quits without notice (see Lab. Code,
§§ 201, 201.5, 201.7, 202, 205.5).
The deﬁnition of “wages” may be deleted as redundant if it is redundant with other
Sources and Authority
• Wages of Discharged Employee Due Immediately. Labor Code section 201.
•Willful Failure to Pay Wages of Discharged Employee. Labor Code section 203.
• Right of Action for Unpaid Wages. Labor Code section 218.
• Wages of Contract Employee on Quitting. Labor Code section 202.
• “Wages” Deﬁned. Labor Code section 200.
• Payment for Accrued Vacation of Terminated Employee. Labor Code section
• Wages Partially in Dispute. Labor Code section 206(a).
• “ ‘[T]he public policy in favor of full and prompt payment of an employee’s
earned wages is fundamental and well established . . .’ and the failure to timely
pay wages injures not only the employee, but the public at large as well. We
have also recognized that sections 201, 202, and 203 play an important role in
vindicating this public policy. To that end, the Legislature adopted the penalty
provision as a disincentive for employers to pay ﬁnal wages late. It goes
without saying that a longer statute of limitations for section 203 penalties
provides additional incentive to encourage employers to pay ﬁnal wages in a
prompt manner, thus furthering the public policy.” (Pineda v. Bank of America,
N.A. (2010) 50 Cal.4th 1389, 1400 [117 Cal.Rptr.3d 377, 241 P.3d 870], internal
• “The purpose of section 203 is to compel the prompt payment of earned wages;
the section is to be given a reasonable but strict interpretation.” (Barnhill v.
Robert Saunders & Co. (1981) 125 Cal.App.3d 1, 7 [177 Cal.Rptr. 803].)
• “The statutory policy favoring prompt payment of wages applies to employees
who retire, as well as those who quit for other reasons.” (McLean v. State
(2016) 1 Cal.5th 625, 26–627 [206 Cal.Rptr.3d 545, 377 P.3d 796].)
• “ ‘ “[T]o be at fault within the meaning of [section 203], the employer’s refusal
to pay need not be based on a deliberate evil purpose to defraud workmen of
wages which the employer knows to be due. As used in section 203, ‘willful’
merely means that the employer intentionally failed or refused to perform an act
which was required to be done.” . . .’ ” (Gonzalez v. Downtown LA Motors, LP
(2013) 215 Cal.App.4th 36, 54 [155 Cal.Rptr.3d 18].)
• “[A]n employer’s reasonable, good faith belief that wages are not owed may
negate a ﬁnding of willfulness.” (Choate v. Celite Corp. (2013) 215 Cal.App.4th
1460, 1468 [155 Cal.Rptr.3d 915].)
• “A proper reading of section 203 mandates a penalty equivalent to the
employee’s daily wages for each day he or she remained unpaid up to a total of
30 days. . . . [¶] [T]he critical computation required by section 203 is the
LABOR CODE ACTIONS CACI No. 2704
calculation of a daily wage rate, which can then be multiplied by the number of
days of nonpayment, up to 30 days.” (Mamika v. Barca (1998) 68 Cal.App.4th
487, 493 [80 Cal.Rptr.2d 175].)
• “ ‘A tender of the wages due at the time of the discharge, if properly made and
in the proper amount, terminates the further accumulation of penalty, but it does
not preclude the employee from recovering the penalty already accrued.’ ”
(Oppenheimer v. Sunkist Growers, Inc. (1957) 153 Cal.App.2d Supp. 897, 899
[315 P.2d 116], citation omitted.)
• “In light of the unambiguous statutory language, as well as the practical
difficulties that would arise under defendant’s interpretation, we conclude there
is but one reasonable construction: section 203(b) contains a single, three-year
limitations period governing all actions for section 203 penalties irrespective of
whether an employee’s claim for penalties is accompanied by a claim for
unpaid ﬁnal wages.” (Pineda,supra, 50 Cal.4th at p. 1398.)
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 398, 399
Chin et al., California Practice Guide: Employment Litigation, Ch. 1-A,
Introduction—Background, ¶ 1:22 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-B,
Compensation—Coverage and Exemptions—In General, ¶ 11:121 (The Rutter
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D,
Compensation—Payment of Wages, ¶¶ 11:456, 11:470.1, 11:510, 11:513–11:515
(The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J,
Compensation—Enforcing California Laws Regulating Employee Compensation,
¶¶ 11:1458–11:1459, 11:1461–11:1461.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B,
Remedies—Contract Damages, ¶ 17:148 (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, § 250.16[d] (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:74 (Thomson Reuters)
2705–2709. Reserved for Future Use
CACI No. 2704 LABOR CODE ACTIONS