Stanford Law School - Robert Crown Law Library

Filed 11/5/07

IN THE SUPREME COURT OF CALIFORNIA

FRANK GATTUSO et al.,
Plaintiffs and Appellants,
S139555
v.
Ct.App. 2/1 B172647
HARTE-HANKS SHOPPERS, INC.,
Los Angeles County
Defendant and Respondent.
Super. Ct. No. BC247419

Labor Code section 2802, subdivision (a), requires an employer to
indemnify its employees for expenses they necessarily incur in the discharge of
their duties.1 May an employer satisfy this statutory obligation by paying
employees increased wages or commissions instead of separately reimbursing
them for their actual expenses?
We conclude that an employer may satisfy its statutory reimbursement
obligation by paying employees enhanced compensation in the form of increases
in base salary or increases in commission rates, or both, provided there is a means
or method to apportion the enhanced compensation to determine what amount is
being paid for labor performed and what amount is reimbursement for business
expenses.

1
Unless otherwise stated, all further statutory references are to the Labor
Code.
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As we will explain, our conclusion differs somewhat from that reached by
the trial court and the Court of Appeal, and the differences affect the analysis of
another issue presented here, whether the trial court abused its discretion in
denying class certification. Accordingly, we reverse the Court of Appeal’s
judgment and remand the matter to that court for further proceedings consistent
with our opinion.
I
Defendant Harte-Hanks Shopper, Inc. (Harte-Hanks) is a California
corporation that prepares and distributes advertising booklets and leaflets in
California, including the PennySaver and the California Shopper. The company is
organized geographically in three business units: the Northern California unit, the
Southern California unit, and the San Diego (or Sutton) unit. To sell advertising
space in its publications, Harte-Hanks employs both outside and inside sales
representatives. Outside sales representatives meet customers in person at their
places of business in assigned geographical territories, while inside sales
representatives contact customers by telephone. Outside sales representatives
must drive their own automobiles to contact customers, while inside sales
representatives work in their employer’s offices using employer-owned telephone
equipment. Harte-Hanks compensates both outside and inside sales
representatives by commissions on advertising sales or by a combination of base
salary and commissions. With few exceptions,2 Harte-Hanks does not separately
reimburse outside sales representatives for their automobile expenses.

2
For the first few months after being hired in the San Diego unit, an outside
sales representative is reimbursed for vehicle expenses by submitting mileage
expense reports. In the Southern California unit, some compensation plans
include a $50 biweekly mileage payment that is included in the base or guarantee.
Also, within each unit, some outside sales representatives have individually
(Footnote continued on next page.)
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Plaintiff Frank Gattuso is an outside sales representative in Harte-Hanks’s
Southern California unit. Plaintiff Ernest Sigala was an outside sales
representative in the same unit until January 2000, when his employment with
Harte-Hanks terminated. They brought this action on behalf of themselves and
other Harte-Hanks outside sales representatives seeking indemnification under
section 2802 for expenses incurred in using their own automobiles to perform their
employment duties. In response to the complaint, Harte-Hanks took the position
that it satisfies its obligation under section 2802 to compensate outside sales
representatives for automobile expenses by paying them higher base salaries and
higher commission rates than it pays to inside sales representatives.3
The trial court asked the parties to brief this issue: “Does Labor Code
section 2802 permit an employer to pay increased wages or commissions instead
of indemnifying actual expenses necessarily incurred in the discharge of an
employee’s duties?” After receiving briefing and hearing oral argument, the trial
court issued an order accepting Harte-Hanks’s argument that section 2802 permits
an employer to pay increased salaries or commissions instead of separately
reimbursing the employee for actual expenses necessarily incurred in discharging
employment duties. The trial court further concluded that the amount or rate of

(Footnote continued from previous page.)

negotiated compensation agreements, which may include periodic car allowances
or business expense packages.
3
In the trial court, Harte-Hanks argued in the alternative that section 2802
did not require employers to reimburse employees “for routine expenses of
employment such as car expenses,” but only for losses caused by third parties.
Both the trial court and the Court of Appeal rejected that argument, and Harte-
Hanks does not assert it in this court. Accordingly, we do not address it here.
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reimbursement could be determined by agreement between employer and
employee or, in the absence of an agreement, could be any reasonable amount.
Plaintiffs then moved the trial court (1) to certify a plaintiff class defined as
all current and former Harte-Hanks outside sales representatives who were not
reimbursed for the expenses they incurred in using their own automobiles after
January 1, 1998, to discharge their employment duties; (2) to certify themselves as
the class representatives; and (3) to appoint their attorneys as class counsel. After
receiving evidence in the form of declarations and depositions, the trial court
denied the motion for class certification. The court took the view that plaintiffs
had not shown common questions of fact and law, giving this explanation:
“Plaintiffs’ claim for unpaid business expenses under [section 2802] turns on the
determination of two issues (1) whether each individual Harte-Hanks outside sales
representative has an agreement about the manner in which he is compensated for
expenses, or (2) whether the compensation paid to each individual sales
representative is reasonable to compensate for business expenses incurred. The
determination of whether there was a meeting of the minds and whether
reimbursement was reasonable necessarily requires an individualized inquiry as to
each outside sales representative. The requirement of commonality therefore is
not met, and Plaintiffs’ claim for unpaid business expenses cannot be maintained
as a class action.”
Plaintiffs appealed from the order denying class certification, and on appeal
they also challenged the earlier order interpreting section 2802. The Court of
Appeal affirmed, agreeing with the trial court’s interpretation of section 2802 and
concluding that the trial court did not abuse its discretion in denying plaintiffs’
motion for class certification. The Court of Appeal denied plaintiffs’ petition for
rehearing, and we granted plaintiffs’ petition for review.
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II
Section 2802, subdivision (a), provides: “An employer shall indemnify his
or her employee for all necessary expenditures or losses incurred by the employee
in direct consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful, unless the
employee, at the time of obeying the directions, believed them to be unlawful.”
Subdivision (c) of section 2802 defines “necessary expenditures or losses” as
including “all reasonable costs . . . .”
A related provision, section 2804, expressly prohibits waiver of the rights
afforded under section 2802. Section 2804 provides: “Any contract or agreement,
express or implied, made by any employee to waive the benefits of this article or
any part thereof, is null and void, and this article shall not deprive any employee
or his personal representative of any right or remedy to which he is entitled under
the laws of this State.”
A. Legislative History
Sections 2802 and 2804 were enacted in 1937 as part of the original Labor
Code.4 (Stats. 1937, ch. 90, §§ 2802, 2804, pp. 258-259.) Section 2802 was
derived from former section 1969 of the Civil Code, which had been enacted in
1872.5 Section 2804 was derived from a 1907 amendment to former section 1970

4
As enacted in 1937, section 2802 read: “An employer shall indemnify his
employee for all that the employee necessarily expends or loses in direct
consequences of the discharge of his duties as such, or of his obedience to the
directions of the employer, even though unlawful, unless the employee, at the time
of obeying such directions, believed them to be unlawful.” (Stats. 1937, ch. 90,
§ 2802, p. 258.)
5
As first enacted in 1872, former section 1969 of the Civil Code provided:
“An employer must indemnify his employé, except as prescribed in the next
section, for all that he necessarily expends or loses in direct consequence of the
(Footnote continued on next page.)
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of the Civil Code. (Stats. 1907, ch. 97, § 1, p. 120.) In 2000, the Legislature
amended section 2802 to its present form. (Stats. 2000, ch. 990, § 1.) Section
2804 has not been amended since its enactment in 1937.
At the time of the 2000 amendment of section 2802, legislative committee
analyses identified the purpose of that provision: “The author [of the amending
legislation] states that Section 2802 is designed to prevent employers from passing
their operating expenses on to their employees. For example, if an employer
requires an employee to travel on company business, the employer must reimburse
the employee for the cost of that travel under Section 2802.” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1305 (1999-2000 Reg.
Sess.) as amended Aug. 18, 2000.)
B. Appellate Decisions Construing or Applying Section 2802
Relatively few appellate decisions have construed or applied section 2802,
and none of those decisions has much relevance to the issue here. Not relevant
here, for example, are decisions concerning an employer’s obligation under
section 2802 to pay legal expenses that an employee incurs in defending a third
party action based on the employee’s job-related conduct. (E.g., Plancarte v.

(Footnote continued from previous page.)

discharge of his duties as such, or of his obedience to the directions of the
employer, even though unlawful, unless the employé, at the time of obeying such
directions, believed them to be unlawful.”

The referenced “next section” was former section 1970 of the 1872 Civil
Code, which originally read: “An employer is not bound to indemnify his
employé for losses suffered by the latter in consequence of the ordinary risks of
the business in which he is employed, nor in consequence of the negligence of
another person employed by the same employer in the same general business,
unless he has neglected to use ordinary care in the selection of the culpable
employé.”
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Guardsmark (2004) 118 Cal.App.4th 640, 647-648; Jacobus v. Krambo Corp.
(2000) 78 Cal.App.4th 1096, 1100-1101; Devereaux v. Latham & Watkins (1995)
32 Cal.App.4th 1571, 1583; Grissom v. Vons Companies, Inc. (1991) 1
Cal.App.4th 52, 56-59; Douglas v. Los Angeles Herald Examiner (1975) 50
Cal.App.3d 449, 457-461.) Also unhelpful here are decisions concerning section
2802’s application to public entity employers. (E.g., In re Work Uniform Cases
(2005) 133 Cal.App.4th 328, 345 [public entities not required to pay the cost of
employee uniforms]; Los Angeles Police Protective League v. City of Los Angeles
(1994) 27 Cal.App.4th 168, 171 [public entities not required to pay expenses for
defending criminal charges].)
Also of doubtful relevance are other decisions concerning nonrecurring
business expenses. For example, in Machinists Automotive Trades Dist. Lodge v.
Utility Trailers Sales Co. (1983) 141 Cal.App.3d 80, the Court of Appeal held that
when “the custom of the trade required the employee to supply his own tools” and
the tools were “too heavy to be transported routinely to and from the place of
employment,” section 2802 required the employer to reimburse the employee for
the loss suffered when the employee’s tools where stolen from the employer’s
premises. (Machinists Automotive Trades Dist. Lodge v. Utility Trailers Sales
Co., supra, at p. 86.) That case disagreed with an earlier Court of Appeal decision
(Earll v. McCoy (1953) 116 Cal.App.2d 44) that had reached the opposite
conclusion in a similar situation, where the employee’s tools were destroyed by a
fire on the employer’s premises. (Machinists Automotive Trades Dist. Lodge v.
Utility Trailers Sales Co., supra, at p. 83.)
C. Administrative Construction and Enforcement
The Division of Labor Standards Enforcement (DLSE) is the state agency
authorized to enforce California’s labor laws. (Reynolds v. Bement (2005) 36
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Cal.4th 1075, 1084; Morillon v. Royal Packing Co. (2000) 22 Cal.4th 575, 581.)
The Labor Commissioner is the chief of the DLSE. (§§ 79, 82.) In 1996, this
court held that all of the DLSE’s interpretive policies contained in its 1989
Operations and Procedures Manual were regulations that were void because they
had not been promulgated in compliance with the Administrative Procedure Act
(Gov. Code, § 11340 et seq.). (Tidewater Marine Western, Inc. v. Bradshaw
(1996) 14 Cal.4th 557, 572.) We also concluded that insofar as the void
regulations reflected the DLSE’s statutory interpretations, those interpretations
were entitled to no deference. (Id. at pp. 576-577.) Nonetheless, we said, a court
may adopt a DLSE statutory interpretation embodied in a void regulation if the
court independently determines that the interpretation is correct. (Id. at p. 577.)
Here, as the parties agree, the DLSE’s interpretation of section 2802, as
applied to automobile expenses, was incorporated into a void regulation.
Accordingly, we review the relevant DLSE policy statements and DLSE advice
and opinion letters as evidence of the DLSE’s interpretation of sections 2802 and
2804, recognizing that its interpretation is entitled to no deference but also that
this court may adopt the DLSE’s interpretation if we independently determine that
it is correct.
1. Interpretive Bulletin No. 84-7
On January 8, 1985, the Labor Commissioner issued a revision to
Interpretive Bulletin No. 84-7. As relevant here, it stated: “Under Labor Code
Section 2802, an employer who requires an employee to furnish his/her own car or
truck to be used in the course of employment would be obligated to reimburse the
employee for the costs necessarily incurred by the employee in using the car or
truck in the course of employment. The rate of reimbursement can be that agreed
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to by the employer and employee, or, if there is no such agreement, any reasonable
amount.” (Ibid.)
2. Opinion Letter No. 1993.02.22-3
On February 22, 1993, H. Thomas Cadell, Jr., as DLSE Chief Counsel,
wrote an advice letter to an attorney. As relevant here, it stated: “[T]he payment
of a reasonable mileage reimbursement covers all reasonable operating costs
incurred by the employee in the operation of the vehicle. The DLSE accepts the
mileage reimbursement used by the IRS as reasonable. Those operating costs
would include damages or loss due to accident or theft unless the damage to or the
loss of the vehicle due to accident or theft was the result of the negligence of the
employer. [¶] . . . [¶] . . . In the absence of an agreement to pay a reasonable
mileage reimbursement, the employer would be required to reimburse the
employee for the actual costs incurred in operating the vehicle while that vehicle
was being used in the service of the employer. Those costs would include, of
course, losses due to accident or theft while the vehicle is being used for the
purposes of the employer.”
3. July 1993 DLSE Update
The DLSE embodied the substance of the February 22, 1993, opinion letter
in a bulletin update issued in July 1993. It reads:
“[T]he payment of a reasonable mileage reimbursement covers all
reasonable operating costs incurred by the employee in the operation of a personal
vehicle for business purposes. The DLSE accepts the mileage reimbursement used
by the IRS as reasonable. Those operating costs would include damages or loss
due to accident or theft, unless the damage or loss was the direct result of the
negligence of the employer.
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“In the absence of an agreement to pay a reasonable mileage
reimbursement, the employer would be required to reimburse the employee for the
actual costs incurred in operating the vehicle while that vehicle was being used in
the service of the employer. Those costs would include losses due to accident or
theft while the vehicle is being used for business purposes.”
4. Opinion Letter No. 1994.08.14
On August 14, 1994, H. Thomas Cadell, Jr., as DLSE Chief Counsel, wrote
an opinion letter to an attorney to clarify and confirm a previous telephone
conversation. As relevant here, the letter stated: “I stated, I am sure, that the
DLSE has long recognized the IRS rate for automobile reimbursement as a
presumptively reasonable rate. . . . The policy of the DLSE continues to be that
the IRS rate is presumptively reasonable for purposes of reimbursement of
automobile expenses.”
5. Opinion Letter No. 1998.11.05
On November 5, 1998, Michael S. Villeneuve, as DLSE Staff Counsel,
wrote an opinion letter to respond to a question asking whether Labor Code
section 2802 requires employers “to reimburse employees for automobile
insurance premiums for coverage above the legal minimum.” As relevant here,
the letter stated:
“As long as the employer reimburses the employee for the cost of the
insurance and does not dictate which company supplies the insurance, the Labor
Code does not prevent the employer you describe from requiring its employees to
obtain insurance coverage beyond the legal minimum. Those expenses which an
employer causes an employee to incur, however, must be reimbursed, since Labor
Code § 2802 requires that the employer indemnify the employee for such loss or
expenditure which is in direct consequence of the discharge of his duties. Thus
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the question becomes whether a ‘reasonable’ mileage reimbursement covers
operating expenses incurred.
“The application of the Internal Revenue Service mileage allowance as a
deduction from income for taxation purposes, which has been previously viewed
by DLSE as ‘reasonable’ as a measure of expenses, is not dispositive with respect
to the issue of indemnification of expenses actually incurred. The IRS figure is a
national average of the cost of operating a motor vehicle without respect to initial
cost of purchase or lease (which affects depreciation allowance), repairs and
maintenance, fluctuating fuel costs, and, of course, cost of insurance, which varies
widely state to state, and locality to locality.
“Prior enforcement of Section 2802 where employers paid less than the IRS
mileage rate viewed such compensation as being rebuttably presumed not to
comply with Section 2802. Thus, if the employer could prove that the actual costs
incurred by the employee were less than the IRS rate, no violation of Section 2802
occurs if the employee is indemnified for actual expenses incurred. Conversely,
payment of the IRS allowance rate confers no irrebutable presumption of
compliance with Section 2802. Rather, the burden shifts to the employee to prove
that actual expenses incurred exceeded the amount tendered by the employer. If
the employee successfully demonstrates that additional insurance coverage raises
the cost of operating the vehicle beyond the IRS mileage figure, the employer will
be obligated to cover such costs. Naturally this determination must be made on a
case by case basis, as insurance costs will vary depending on the domicile and use
locations.
“Thus while the Division generally finds the IRS mileage rate as
reimbursement to be reasonable, no overall exemption from liability under Section
2802 can be given. Since the IRS mileage rate is based, in part, on average costs
of insurance premiums as applied to drivers with average driving records, a
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particular driver may be able to demonstrate that higher costs were necessarily
incurred in the purchase of such insurance.” (Fn. omitted.)
6. Letter dated September 12, 2000
On September 12, 2000, Patricia K. Huber, as Deputy Labor
Commissioner, wrote a letter to a corporation’s general counsel. As relevant here,
the letter stated: “The cost of operating a vehicle is a reimbursable expense under
Labor Code Section 2802. If there is no specific agreement as to the mileage rate,
the IRS rate is considered reasonable and is used. Otherwise, the employer is
responsible for the actual costs incurred in operating the vehicle.”
7. Letter dated December 27, 2005
On December 27, 2005, Anne Hipsham, as Staff Counsel for the Labor
Commissioner, wrote a letter to this court urging depublication of the Court of
Appeal’s opinion in this case. In relevant part, the letter stated:
“The Labor Commissioner has developed an enforcement position that the
Internal Rev[en]ue Service (IRS) rate of reimbursement is the acceptable level for
reimbursement of mileage for an employee’s use of a personal vehicle. . . . [¶]
The DLSE reached this conclusion after many decades of enforcement in the area
of reimbursement for mileage for personal vehicles required to be driven for work-
related activities, because of the difficulty in accurately determining the precise
amount an employee should be reimbursed for purposes of meeting the
indemnification language contained in Section 2802.
“The mileage reimbursement rate is compiled by the IRS by taking into
account all factors involved with the use of a vehicle: fuel, maintenance, repairs,
depreciation, insurance, etc. by annually conducting a national survey and coming
up with appropriate averages.
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“The DLSE enforcement position also allows for a deviation from the IRS
rate where appropriate. If an employer wants to pay less than this established IRS
rate, the employer bears the burden of proving that the employee’s costs of
operating the vehicle for work is actually less. If the employee seeks a rate of
reimbursement higher than the IRS rate, the employee bears [] the burden [of]
proving that his or her actual operating costs are higher.”
III
When construing a statute, a court’s goal is “to ascertain the intent of the
enacting legislative body so that we may adopt the construction that best
effectuates the purpose of the law.” (Hassan v. Mercy American River Hospital
(2003) 31 Cal.4th 709, 715; accord, Coachella Valley Mosquito & Vector Control
Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072,
1087.) Generally, the court first examines the statute’s words, giving them their
ordinary and usual meaning and viewing them in their statutory context, because
the statutory language is usually the most reliable indicator of legislative intent.
(Hassan v. Mercy American River Hospital, supra, at p. 715; accord, City of
Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 625.)
When the statutory language is ambiguous, a court may consider the
consequences of each possible construction and will reasonably infer that the
enacting legislative body intended an interpretation producing practical and
workable results rather than one producing mischief or absurdity. “Our decisions
have long recognized that a court’s ‘overriding purpose’ in construing a statute is
‘to give the statute a reasonable construction conforming to [the Legislature’s]
intent [citation] . . . .’ ” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th
1272, 1299, fn. 22, quoting Massey v. Workers’ Comp. Appeals Bd. (1993) 5
Cal.4th 674, 681, italics in original.) “The court will apply common sense to the
language at hand and interpret the statute to make it workable and reasonable.”
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(Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1122.)
“When a statute is capable of more than one construction, ‘ “[w]e must . . . give
the provision a reasonable and commonsense interpretation consistent with the
apparent purpose and intention of the lawmakers, practical rather than technical in
nature, which upon application will result in wise policy rather than mischief or
absurdity.” ’ ” (In re Reeves (2005) 35 Cal.4th 765, 771, fn. 9, quoting Renee J. v.
Superior Court (2001) 26 Cal.4th 735, 744, quoting Marshall M. v. Superior
Court (1999) 75 Cal.App.4th 48, 55.)
Here, the parties agree that section 2802, which requires an employer to
indemnify its employees for expenses they necessarily incur in the discharge of
their duties, requires Harte-Hanks to fully reimburse its outside sales
representatives for the automobile expenses they actually and necessarily incur in
performing their employment tasks. They disagree only on whether section 2802
permits an employer to do so through an increase in overall compensation rather
than through a separately identified reimbursement payment.
The parties agree that one method an employer may use for automobile
expense reimbursement is to calculate the automobile expenses that the employee
actually and necessarily incurred and then to separately pay the employee that
amount. This actual expense method is the most accurate, but it is also the most
burdensome for both the employer and the employee. The actual expenses of
using an employee’s personal automobile for business purposes include fuel,
maintenance, repairs, insurance, registration, and depreciation. To calculate the
reimbursement amount using the actual expense method, therefore, the employee
must keep detailed and accurate records of amounts spent in each of these
categories. Calculation of depreciation will require information about the
automobile’s purchase price and resale value (or lease costs). In addition, the
employee must keep records of the information needed to apportion those
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expenses between business and personal use. This is generally done by separately
recording the miles driven for business and personal use. The employee then must
submit all of this information to the employer for calculation of the reimbursement
amount due.
In calculating the reimbursement amount due under section 2802, the
employer may consider not only the actual expenses that the employee incurred,
but also whether each of those expenses was “necessary,” which in turn depends
on the reasonableness of the employee’s choices. (See Grissom v. Vons
Companies, Inc., supra, 1 Cal.App.4th at p. 58 [under § 2802, “ascertaining what
was a necessary expenditure will require an inquiry into what was reasonable
under the circumstances”].) For example, an employee’s choice of automobile
will significantly affect the costs incurred. An employee who chooses an
expensive model and replaces it frequently will incur substantially greater
depreciation costs than an employee who chooses a lower priced model and
replaces it less frequently. Similarly, some vehicles use substantially more fuel or
require more frequent or more costly maintenance and repairs than others. The
choice of vehicle will also affect insurance costs. Other employee choices, such as
the brand and grade of gasoline or tires and the shop performing maintenance and
repairs, will also affect the actual costs. Thus, calculation of automobile expense
reimbursement using the actual expenses method requires not only detailed record
keeping by the employee and complex allocation calculations, but also the
exercise of judgment (by the employer, the employee, and officials charged with
enforcement of section 2802) to determine whether the expenses incurred were
reasonable and therefore necessary.
Because of the onerous burdens that the actual expense method imposes on
both employer and employee, few employers use this method to determine
reimbursement for work-required use of employees’ own automobiles, and both
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parties here agree that the actual expense method is not the only method that an
employer may use to satisfy its reimbursement obligations under section 2802.
Both parties agree that an employer may also use the mileage reimbursement
method.
When an employer uses the mileage reimbursement method to determine
the amount of reimbursement due under section 2802 for work-required use of an
employee’s own automobile, the employee need only keep a record of the number
of miles driven to perform job duties. The employee submits that information to
the employer, who then multiplies the work-required miles driven by a
predetermined amount that approximates the per-mile cost of owning and
operating an automobile. As indicated in the DLSE opinion letters and policy
statements previously quoted, the federal Internal Revenue Service (IRS) has
calculated an automobile mileage rate for federal income tax purposes, based on
national average expenses for fuel, maintenance, repair, depreciation, and
insurance, and this IRS mileage rate is also widely used and accepted by private
business employers for calculating reimbursable employee automobile expenses.
Here, both parties agree that section 2802 permits use of the IRS mileage rate to
calculate automobile expense reimbursement under the mileage reimbursement
method.
Because a mileage rate used in the mileage reimbursement method is
merely an approximation of actual expenses, the mileage reimbursement method is
inherently less accurate than the actual expense method. Because section 2802
requires the employer to fully reimburse the employee for all expenses actually
and necessarily incurred, both parties here agree that if an employer uses the
mileage reimbursement method, the employee must be permitted to challenge the
resulting reimbursement payment. If the employee can show that the
reimbursement amount that the employer has paid is less than the actual expenses
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that the employee has necessarily incurred for work-required automobile use (as
calculated using the actual expense method), the employer must make up the
difference.
The DLSE interpretive bulletin (see ante, p. 8) said that the mileage rate
could be set by agreement of the parties, and the trial court stated that it
independently reached the same conclusion. We agree that, as with other terms
and conditions of employment, a mileage rate for automobile expense
reimbursement may be a subject of negotiation and agreement between employer
and employee. Under section 2804, however, any agreement made by the
employee is null and void insofar as it waives the employee’s rights to full
expense reimbursement under section 2802. Therefore, the existence of an
agreement concerning a mileage reimbursement rate would not relieve the
employer of the statutory obligation to provide complete reimbursement, nor
would it preclude an employee from challenging the sufficiency of a
reimbursement payment that was calculated using the agreed mileage rate.
Another automobile expense reimbursement method is the use of a lump-
sum payment. Under this method, the employee need not submit any information
to the employer about work-required miles driven or automobile expenses
incurred. The employer merely pays a fixed amount for automobile expense
reimbursement. The fixed amount may take various forms and have various
labels, including per diem, car allowance, and gas stipend. The amount is
generally based on the employer’s understanding of the employee’s job duties,
including the number of miles that the employee typically or routinely must drive
to perform those duties. Although the parties here agree that an employer may use
either the actual expense method or the mileage reimbursement method, they do
not agree on whether section 2802 permits an employer to use a lump-sum method
to reimburse employee automobile expenses.
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Plaintiffs contend that section 2802 does not permit an employer to use the
lump-sum method for automobile expense reimbursement. They argue that
“compliance with section 2802 requires that an employer must correlate the
employee’s reimbursement to the incurred expenses” because “[c]orrelation is
necessary to guarantee reimbursement of employee expenses.” Harte-Hanks
argues, to the contrary, that section 2802 does not require employers to use a
“correlated” reimbursement plan, that section 2802 does not restrict the methods
by which the employer may calculate reimbursement, and that section 2802
requires only that whatever method is used result in full reimbursement for actual
expenses necessarily incurred by the employee.
We agree with Harte-Hanks, and also with the trial court and the Court of
Appeal, that section 2802 does not prohibit an employer’s use of a lump-sum
method to reimburse employees for work-required automobile expenses, provided
that the amount paid is sufficient to provide full reimbursement for actual
expenses necessarily incurred. Nothing in the language of section 2802 restricts
the methods that an employer may use to calculate reimbursement, and we are
required to construe section 2802 in a manner that produces a workable and
reasonable result. If, for example, an employee drives exactly the same route day
after day, so that the mileage driven varies little if at all from one day to the next,
it would be unreasonable to require a meticulous record of actual miles driven. In
that situation, an employer should be able to dispense with actual mileage reports
and calculate a lump-sum payment based on the employer’s knowledge of the
distances that an employee must drive to perform the duties of the employee’s job.
In support of their argument that section 2802 requires a method of
automobile expense reimbursement that is “correlated” to actual expenses incurred
or miles driven, plaintiffs cite no authority apart from section 2802 itself. They
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argue only that correlation is necessary to allow effective enforcement of
employees’ rights under section 2802.
Of course, an employee must be permitted to challenge the amount of a
lump-sum payment as being insufficient under section 2802. An employee may
do so by comparing the payment with the amount that would be payable under
either the actual expense method or the mileage reimbursement method. If the
comparison reveals that the lump sum is inadequate, the employer must make up
the difference. As with mileage rates, an employer and an employee may agree on
a particular lump sum to be paid as automobile reimbursement. But, under section
2804, the existence of an agreement between an employer or employee regarding a
lump-sum reimbursement payment would not relieve the employer of the statutory
obligation to pay full reimbursement, nor would it bar an employee challenge to a
lump-sum payment as being insufficient under section 2802 to provide full
reimbursement.
As Harte-Hanks points out, an employer’s decision to use a lump-sum
method rather than a mileage reimbursement system may have income tax
consequences, affecting whether the resulting payments are exempt from
withholding requirements (see, e.g., Shotgun Delivery, Inc. v. United States (9th
Cir. 2001) 269 F.3d 969, 972-973) and, ultimately, the extent to which they are
taxable as income or instead treated as deductible business expenses. We agree
with Harte-Hanks, however, that section 2802 does not require an employer to use
a reimbursement method that is congruent with any tax law or has any particular
tax consequence. Of course, as Harte-Hanks concedes, and as the Court of Appeal
also concluded, any tax consequences that result from the employer’s choice of
reimbursement method should be considered in determining whether a particular
payment provides the full measure of reimbursement that section 2802 requires.
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Having concluded that section 2802 permits an employer’s use of a lump-
sum method to reimburse an employee for work-required automobile expenses, we
next consider whether the employer must segregate the lump sum from other
compensation or whether, as the trial court and the Court of Appeal concluded, the
employer instead may pay the lump sum in the form of an increase to the
employee’s base salary or commissions. Plaintiffs argue that the reimbursement
amount must be kept entirely separate from salary and commissions, for these
reasons: (1) the statutory definition of “wages” in section 200 excludes
reimbursement payments; (2) section 226, which requires employers to itemize
their wage payments, does not contemplate inclusion of business expense
reimbursement within wage payments; and (3) allowing business expense
reimbursement payments to be combined with wage payments contradicts the
DLSE’s long-standing interpretation of section 2802. We consider these
objections in turn.
Plaintiffs argue first that expense reimbursements cannot be wages, and
reimbursement payments therefore must be separated from base salary and
commissions. They rely on section 200, subdivision (a), which states that “[a]s
used in this article . . . ‘[w]ages’ includes 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.”
(Italics added.) Plaintiffs argue that because wages are paid “for labor performed”
whereas payments under section 2802 are reimbursement for work-required
expenses the employee has incurred, a wage payment, whether in the form of
salary or commission, cannot be used to discharge an employer’s obligation under
section 2802.
Section 200 highlights a valid and important distinction between wages (as
payment for labor performed) and business expense reimbursement. The amount
20

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payable as wages is subject to various statutory restrictions, including minimum
wage laws, which operate independently of, and in addition to, section 2802’s
obligation of an employer to fully reimburse an employee’s necessary business
expenses. The amount payable as wages may also be fixed by a contract of
employment, and contractual agreements regarding employee compensation may
or may not include specific terms governing business expense reimbursement.
Because wages and expense reimbursement are conceptually distinct and subject
to different statutory and sometimes also contractual constraints, an employer may
not combine the payments for both in a way that would seriously hamper or
effectively preclude enforcement of the various statutory and contractual
obligations.
This does not mean, however, that an employer is prohibited from
combining wages and business expense reimbursements in a single enhanced
employee compensation payment or from discharging its section 2802 business
expense reimbursement obligation through an increase in base salary or in
commission rates (or an increase in both salary and commission rates). It simply
means that the employer must provide some method or formula to identify the
amount of the combined employee compensation payment that is intended to
provide expense reimbursement. Using that method or formula, the employee
(and also officials charged with enforcement of state and federal wage laws) then
can readily determine whether the employer has discharged all of its legal
obligations as to both wages and business expense reimbursement. Although
section 2802 does not expressly require the employer to provide an apportionment
method, it is essential that employees and officials charged with enforcing the
labor laws be able to differentiate between wages and expense reimbursements.
Because providing an apportionment method is a practical necessity for effective
21

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enforcement of section 2802’s reimbursement provisions, it is implicit in the
statutory scheme.
An employer that chooses to link expense reimbursement to employee
performance by providing automobile expense reimbursement through an increase
in commission rates, as Harte-Hanks alleges it has done, runs a risk that the
employee, for whatever reason, may earn less commission income than the
employer anticipated, so that the increase in the commission rate may be
insufficient to provide full reimbursement for the automobile expenses that the
employee necessarily incurred. If that happens, the employer’s full reimbursement
obligation under section 2802 will require it to make up the difference. Harte-
Hanks concedes that this is so. This is not a reason, however, to conclude that
section 2802 prohibits this method of business expense reimbursement.
We next consider plaintiffs’ argument that providing section 2802
automobile expense reimbursement through enhanced employee compensation, in
the form of increases in base salary and/or commission rates, would violate or be
inconsistent with an employer’s obligation under section 226, subdivision (a), to
itemize employee compensation payments. Section 226, subdivision (a), provides:
“Every employer shall, semimonthly or at the time of each payment of wages,
furnish each of his or her employees, either as a detachable part of the check, draft,
or voucher paying the employee’s wages, or separately when wages are paid by
personal check or cash, an accurate itemized statement in writing showing
(1) gross wages earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is exempt from
payment of overtime under subdivision (a) of Section 515 or any applicable order
of the Industrial Welfare Commission, (3) the number of piece-rate units earned
and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all
deductions, provided that all deductions made on written orders of the employee
22

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may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive
dates of the period for which the employee is paid, (7) the name of the employee
and his or her social security number, except that by January 1, 2008, only the last
four digits of his or her social security number or an employee identification
number other than a social security number may be shown on the itemized
statement, (8) the name and address of the legal entity that is the employer, and
(9) all applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate by the employee. The
deductions made from payments of wages shall be recorded in ink or other
indelible form, properly dated, showing the month, day, and year, and a copy of
the statement or a record of the deductions shall be kept on file by the employer
for at least three years at the place of employment or at a central location within
the State of California.”
We find nothing in the language of section 226, subdivision (a), that
prohibits an employer from discharging its reimbursement obligations under
section 2802 by increases in base salary or commission rates. Section 226,
subdivision (a), requires the employer to document the basis of the employee
compensation payments, including the gross wages earned, the hours worked, the
number of piece-rate units earned, and each deduction taken. As we have
explained, an employer who uses salary and/or commission increases to discharge
its reimbursement obligation must also communicate to its employees the method
or basis for apportioning any increases in compensation between compensation for
labor performed and business expense reimbursement. Such a requirement, as
23

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noted, is necessary for effective enforcement of section 2802’s reimbursement
provisions and, thus, implicit in the statutory scheme.6
Plaintiffs argue, finally, that allowing an employer to combine business
expense reimbursement with payments for labor performed contradicts the
DLSE’s long-standing interpretation of section 2802. As we have explained,
however, the DLSE’s interpretation of section 2802, because it was embodied in a
void regulation, is not entitled to deference. (Tidewater Marine Western, Inc. v.
Bradshaw, supra, 14 Cal.4th at pp. 576-577.) In any event, with the exception of
the DLSE letter urging depublication of the Court of Appeal’s opinion in this case,
none of the DLSE policy statements or opinion letters that have been made part of
the record in this case addresses the question at issue here. Although the DLSE
has endorsed both the actual expense method and the mileage reimbursement
method for discharging an employer’s obligations under section 2802, the DLSE
has not, so far as we are aware, considered or rejected other methods, such as the
use of a lump-sum payment or enhanced compensation in the form of an increase
in base salary and/or commission rates. Accordingly, the DLSE’s construction of
section 2802, as explained in the materials in the record before us, does not
support plaintiffs’ position.
We conclude that an employer may satisfy its statutory business expense
reimbursement obligation under section 2802 by paying employees enhanced
compensation in the form of increases in base salary or commission rates,
provided the employer establishes some means to identify the portion of overall

6
In the future, employers that provide business expense reimbursement to
employees through increases in base salary or commission rates should, in
providing the documentation required by section 226, subdivision (a), separately
identify the amounts that represent payment for labor performed and the amounts
that represent reimbursement for business expenses.
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compensation that is intended as expense reimbursement, and provided also that
the amounts so identified are sufficient to fully reimburse the employees for all
expenses actually and necessarily incurred.
IV
The remaining issue is whether the trial court abused its discretion in
denying plaintiffs’ motion to certify a plaintiff class defined as all current and
former Harte-Hanks outside sales representatives who were not reimbursed for the
expenses they incurred in using their own automobiles after January 1, 1998, to
discharge their employment duties.
Under Code of Civil Procedure section 382, a class action is permitted
“when the question is one of a common or general interest, of many persons, or
when the parties are numerous, and it is impracticable to bring them all before the
court . . . .” Class certification requires both an ascertainable class and a well-
defined community of interest among class members. (Sav-On Drug Stores, Inc.
v. Superior Court (2004) 34 Cal.4th 319, 326; accord, Fireside Bank v. Superior
Court (2007) 40 Cal.4th 1069, 1089.) Here, the trial court concluded that
plaintiffs had established an ascertainable class but also that they had failed to
satisfy the “community of interest” requirement.
“The ‘community of interest’ requirement embodies three factors:
(1) predominant common questions of law or fact; (2) class representatives with
claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.” (Sav-On Drug Stores, Inc. v. Superior Court,
supra, 34 Cal.4th at p. 326.) The trial court here concluded that plaintiffs had
failed to show the existence of predominant questions of law or fact.
The trial court’s ruling on the class certification motion is reviewed for
abuse of discretion. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34
Cal.4th at p. 326.) If supported by substantial evidence, a class certification ruling
25

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“generally will not be disturbed ‘unless (1) improper criteria were used [citation];
or (2) erroneous legal assumptions were made [citation].’ ” (Linder v. Thrifty Oil
Co. (2000) 23 Cal.4th 429, 435-436; accord, Sav-On Drug Stores, Inc. v. Superior
Court, supra, at pp. 326-327.)
In concluding that common issues did not predominate here, the trial court
reasoned that plaintiffs’ claims under section 2802 would “turn[] on the
determination of two issues (1) whether each individual Harte-Hanks outside sales
representative has an agreement about the manner in which he is compensated for
expenses, or (2) whether the compensation paid to each individual sales
representative is reasonable to compensate for business expenses incurred” and
that both determinations would require “an individualized inquiry as to each
outside sales representative.”
The class that plaintiffs sought to certify consisted of all Harte-Hanks
outside sales representatives “who were not reimbursed for the expenses they
incurred in using their own automobiles after January 1, 1998.” We construe this
to refer to the Harte-Hanks outside sales representatives who were not separately
reimbursed, apart from their base salary and commissions. Not included in the
proposed class, therefore, are the relatively few Harte-Hanks outside sales
representatives who received automobile expense reimbursement through a
separate payment, whether as the result of an individually negotiated
compensation package or otherwise. (See fn. 2, ante, at p. 2.)
Harte-Hanks has taken the position that as to the members of this proposed
class, it fulfilled its reimbursement obligation under section 2802 by paying them
higher commission rates and higher base salaries than it paid to inside sales
representatives. As we explained in the previous section, the validity of this claim
will turn on the resolution of these questions: (1) Did Harte-Hanks adopt a
practice or policy of reimbursing outside sales representatives for automobile
26

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expenses by paying them higher commission rates and base salaries than it paid to
inside sales representatives? (2) If so, did it establish a method to apportion the
enhanced compensation payments between compensation for labor performed and
expense reimbursement? (3) If so, was the amount paid for expense
reimbursement sufficient to fully reimburse the employees for the automobile
expenses they reasonably and necessarily incurred?
Neither the trial court nor the Court of Appeal framed the class certification
issue in that way, and so neither court considered whether these inquiries are
capable of resolution on a class-wide basis. Accordingly, the class certification
issue is to be reconsidered upon remand.
V
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court for further proceedings consistent with this court’s opinion.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

27

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Gattuso v. Harte-Hanks Shoppers, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 133 Cal.App.4th 985
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S139555
Date Filed: November 5, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Anthony J. Mohr

__________________________________________________________________________________

Attorneys for Appellant:

Hollins • Schechter, Andrew S. Hollins, Kathleen M. K. Carter, Jeffrey R. Gillette, Alicia K. Berry and
Christine R. Arnold for Plaintiffs and Appellants.

Tosdal, Smith, Steiner & Wax and Thomas L. Tosdal for Employee Rights Center as Amicus Curiae on
behalf of Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Seyfarth Shaw, Raymond R. Kepner, Ann Haley Fromholz, John A. Van Hook and Holger G. Besch for
Defendant and Respondent.

Winston & Strawn, Lee T. Paterson, Tyler M. Paetkau, Robert Spagat and Julia Lapis Blakeslee for
Employers Group as Amicus Curiae on behalf of Defendant and Respondent.

Paul, Hastings, Janofsky & Walker and Paul Grossman for California Employment Law Council as
Amicus Curiae on behalf of Defendant and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathleen M. K. Carter
Hollins • Schechter
1851 E. First Street, 6th Floor
Santa Ana, CA 92705
(714) 558-9119

Raymond R. Kepner
Seyfarth Shaw
2029 Century Park East, Suite 3300
Los Angeles, CA 90067-3063
(310) 277-7200

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Opinion Information

Date:	Docket Number:
Mon, 11/05/2007	S139555

Disposition
Nov 5 2007	Opinion: Reversed

Dockets
Dec 5 2005	Petition for review filed   Frank Gattuso and Ernest Sigala, appellants Attorney Andrew Hollins, retained counsel
Dec 9 2005	Filed letter from:   letter of errata re: petition for review Frank Gattuso and Ernest Sigala, appellants
Dec 12 2005	Record requested
Dec 13 2005	Received Court of Appeal record
Dec 14 2005	Request for depublication (petition for review pending)   non-party, The Law Firm of Cohelan & Khoury
Dec 22 2005	Answer to petition for review filed   Defendant and Respondent Harte-Hanks Shoppers, Inc. Attorney Raymond R. Kepner, Retained
Dec 27 2005	Request for depublication filed (another request pending)   Division of Labor Standards Enforcement, non-party Anne Hipshman, staff counsel
Jan 3 2006	Reply to answer to petition filed   appellant, Frank Gattuso.
Jan 6 2006	Filed:   response to depub. request of Div. of Labor Standards Harte-Hanks Shoppers, defendant and respondent John Van Hook, counsel
Jan 24 2006	Time extended to grant or deny review   to and including March 3, 2006, or the date upon which review is either granted or denied.
Feb 22 2006	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Werdegar, Chin, Moreno, Corrigan, JJ.
Mar 8 2006	Received additional record
Mar 10 2006	Certification of interested entities or persons filed   Harte-Hanks Shoppers, defendant and respondent
Mar 13 2006	Certification of interested entities or persons filed   Frank Gattuso, plaintiff and appellant
Mar 24 2006	Opening brief on the merits filed   Frank Gattuso, et al., appellants Jeffrey R. Gillette, counsel
Mar 30 2006	Request for extension of time filed   to file answer brief on the merits of Harte-Hanks Shoppers, Inc., Defendant and Resondent John A. Van Hook, counsel
Apr 11 2006	Extension of time granted   to 6-8-06 for resp to file the answer brief on the merits.
Jun 8 2006	Answer brief on the merits filed   Harte-Hanks Shoppers, Inc., respondent
Jun 12 2006	Received application to file Amicus Curiae Brief   Employee Rights Center Thomas Tosdal, counsel
Jun 15 2006	Permission to file amicus curiae brief granted   by the Employee Rights Center in support of appellant Gattuso.
Jun 15 2006	Amicus curiae brief filed   by the Employee Rights Center in support of appellant Gattuso.
Jun 28 2006	Reply brief filed (case fully briefed)   Frank Gattuso, et al. Jeffrey R. Gillette, counsel
Jul 5 2006	Response to amicus curiae brief filed   by respondent Harte-Hanks Shoppers, Inc., to a/c brief of The Employee Rights Center
Jul 26 2006	Received application to file Amicus Curiae Brief   California Employment Law Council in support of respondent Harte-Hanks Shoppers, Inc. Paul Grossman, counsel
Jul 28 2006	Received application to file Amicus Curiae Brief   Employers Group Tyler Paetkau, counsel application and brief in support of defendant and respondent
Aug 7 2006	Permission to file amicus curiae brief granted   Permission granted for Employers Group to file an A/C brief in support of respondent. An answer may be filed w/in 20 days.
Aug 7 2006	Amicus curiae brief filed   Employers Group, in support of respondent Tyler Paetkau, counsel
Aug 7 2006	Permission to file amicus curiae brief granted   Permission granted for California Employment Council to file an A/C brief in support of respondent. An answer may be filed w/in 20 days.
Aug 7 2006	Amicus curiae brief filed   California Employment Law Council, in support of respondent Paul Grossman, counsel
Aug 23 2006	Request for extension of time filed   by counsel for appellants (Frank Gattuso & Ernest Sigala) to extend time to answer amicus briefs filed by The California Employment Law Council and The Employers Group to Sept. 27, 2006. Jeffrey R. Gillette, counsel
Aug 31 2006	Extension of time granted   to 9-27-06 for appellants to file answers to the amicus briefs.
Sep 27 2006	Response to amicus curiae brief filed   by Frank Gattuso & Ernest Sigala, appellants to a/c briefs filed by Employers Group Jeffrey R. Gillette, counsel
Sep 27 2006	Response to amicus curiae brief filed   by Frank Gattuso & Ernest Sigala, appellants to a/c briefs filed by California Employment Law Council Jeffrey R. Gillette, counsel
Feb 13 2007	Request for judicial notice filed (granted case)   Frank Gattuso and Ernest Sigala, appellants (request & motion under same cover)
Mar 8 2007	Opposition filed   by Harte-Hanks Shoppers, Inc., respondent to request for Judicial Notice
Mar 22 2007	Received:   Reply & Objection to opposition to Reqt for Judicial Notice Appellants' Frank Gattuso & ernest Sigala Attorney Jeffrey R. Gillette
Mar 26 2007	Filed:   Objection and reply to opposition to motion for judicial notice. Frank Gattuso, Appellants by Jeffrey R. Gillette, counsel filed with permission.
Apr 12 2007	Received:   Respondent, Harte-Hanks Shoppers Inc.'s, supplement to its Opposition to Petitioner's Motion for Judicial Notice
Aug 8 2007	Case ordered on calendar   to be argued on Thursday, September 6, 2007, at 9:00 a.m., in San Francisco
Aug 20 2007	Received:   second supplement to opposition to Petitioner's Reqt for Judicial Notice and 6 vols Exhibits (supplement filed 4-12-07; opposition filed 3-8-07] Respondent, Harte-Hanks Shoppers, Inc.
Aug 30 2007	Request for judicial notice granted   The Motion for Judicial Notice brought by Plaintiffs and Appellants Frank Gattuso and Ernest Sigala, and filed in this court on February 18, 2007, is granted as to this court's opinion in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557 (exhibit E) and the Division of Labor Standards Enforcement opinion letters dated August 14, 1994 (exhibit H) and November 5, 1998 (exhibit I). In all other respects, the motion is denied.
Sep 6 2007	Cause argued and submitted
Nov 2 2007	Notice of forthcoming opinion posted
Nov 5 2007	Opinion filed: Judgment reversed   and the matter is remanded to the Court of Appeal for further proceedings consistent with the opinion. Majority opinion by Kennard, J. -------------------------joined by George, C.J., Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
Dec 26 2007	Remittitur issued (civil case)

Briefs
Mar 24 2006	Opening brief on the merits filed
Jun 8 2006	Answer brief on the merits filed
Jun 15 2006	Amicus curiae brief filed
Jun 28 2006	Reply brief filed (case fully briefed)
Jul 5 2006	Response to amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Aug 7 2006	Amicus curiae brief filed
Sep 27 2006	Response to amicus curiae brief filed
Sep 27 2006	Response to amicus curiae brief filed

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