Supreme Court of California Justia
Docket No. S140308

Murphy v. Kenneth Cole Productions

Filed 4/16/07

IN THE SUPREME COURT OF CALIFORNIA

JOHN PAUL MURPHY,
Plaintiff and Respondent,
S140308
v.
Ct.App. 1/1 A107219; A108346
KENNETH COLE PRODUCTIONS, INC., )

San Francisco County
Defendant and Appellant.
Super. Ct. No. CGC-03-423260

This case presents two issues: first, whether the “one additional hour of
pay” provided for in Labor Code section 226.7 constitutes a wage or premium pay
subject to a three-year statute of limitations (Code Civ. Proc., § 338) or a penalty
subject to a one-year statute of limitations (Code Civ. Proc., § 340); second,
whether a trial court, conducting a de novo trial, can consider additional wage
claims not presented in the administrative proceeding before the state Labor
Commissioner. We conclude that the remedy provided in Labor Code section
226.7 constitutes a wage or premium pay and is governed by a three-year statute
of limitations and that the trial court properly considered the additional, but
related, wage claims during the de novo trial. Accordingly, we reverse the
contrary judgment of the Court of Appeal.
FACTS AND PROCEDURAL HISTORY
As noted by the Court of Appeal, “the controlling historical facts as
established by the trial court [are] largely undisputed.”
1



Plaintiff John Paul Murphy worked as a store manager in a Kenneth Cole
Productions (KCP) retail clothing store from June 2000 until June 19, 2002,
during which he was paid a weekly salary. The store was open from 9:30 a.m. to
8:00 p.m., Monday through Saturday, and 11:00 a.m. to 6:00 p.m. on Sunday. On
a typical day, Murphy and another employee arrived around 8:30 or 9:00 a.m. to
open the store. Between 9:30 a.m. and 1:00 p.m., Murphy did nothing other than
make sales, receive or transfer product, process markdowns and clean.
During a usual weekday afternoon, the second shift of either one or two
people arrived at 1:00 p.m. The employee who had opened the store with Murphy
would go to lunch, and Murphy and another employee would begin carrying
merchandise into the stockroom while covering the sales floor. At some point,
Murphy would go to the office to eat as he continued to work. By 2:00 p.m. he
was either on the sales floor or working back in the stockroom. Murphy was
scheduled to leave at 6:00 p.m., but he often would have customers on the sales
floor, or would do some human resources paperwork.
Murphy’s duties when he worked the closing shift from noon until 8:00
p.m. were essentially the same as when he worked the opening shift. On most
days, he was on the sales floor or in the stockroom from 12:30 to 4:30 p.m. At
4:30 p.m. he would try to eat lunch while he checked KCP company voice mail
and e-mail in the office, and then worked on the sales floor until closing time.
After the store was closed, Murphy and a sales associate would verify the bank
deposit, clean up the store, put shoes away, vacuum and empty the garbage.
Typically, they would finish cleaning around 8:45 or 9:00 p.m.
Murphy regularly worked 9- to 10-hour days, during which he was only
able to take an uninterrupted, duty-free meal period approximately once every two
weeks. He rarely, if ever, had the opportunity to take a rest period and, on
occasion, was unable to go to the restroom.
2

Murphy resigned on June 19, 2002. A friend told him that KCP had not
been paying him correctly. On October 16, 2002, Murphy filed a wage claim with
the Labor Commissioner. Murphy used the check-the-box form to raise claims for
unpaid overtime and waiting time penalties, but did not know he could make a
claim for rest and meal period and itemized pay statement violations. 1 Even had
he sought to file a claim for itemized pay statement violations, it is the policy of
the Labor Commissioner to deny requests to file such claims.
On June 24, 2003, more than eight months after the initial filing of the
wage claim, the Labor Commissioner conducted a hearing. The Labor
Commissioner issued a decision in Murphy’s favor on July 14, 2003, finding that
KCP failed to establish that Murphy was an exempt employee and awarding
unpaid overtime, interest, and waiting time penalties.
On August 6, 2003, KCP filed a notice for de novo review, which vested
jurisdiction in the San Francisco Superior Court. On October 24, 2003, the
Hastings College of the Law Civil Justice Clinic (Civil Justice Clinic) filed and
served a notice of association of counsel to represent Murphy along with the
Division of Labor Standards Enforcement (DLSE). On November 10, 2003, the
Civil Justice Clinic and the DLSE filed a “Notice of Claims and Issues at De Novo
Trial of Wage Claim.” In addition to unpaid overtime, interest, and waiting time
penalties, Murphy asserted claims for meal and rest period and itemized pay
statement violations. KCP objected to the introduction of new claims, but the trial

1
Labor Code section 226, subdivision (a), lists the information that an
employer must include on nonexempt employees’ pay statements. Section 226,
subdivision (e), entitles employees “suffering injury as a result of a knowing and
intentional failure by an employer to comply” to recover the greater of actual
damages or fifty dollars for an initial violation and one hundred dollars for
subsequent violations, plus costs and reasonable attorney’s fees.
3


court, after requesting briefing from the parties on the matter, overruled the
objections and considered the additional claims. The trial court reasoned that
hearing the new claims served the interests of judicial economy, preserving the
rights of the parties, and discouraging appeals by subjecting employers who
appeal to additional liability.
In May 2004, the trial court filed its statement of decision and a judgment
awarding Murphy unpaid overtime, payments for missed meal and rest periods,
penalties for failing to furnish itemized pay statements, waiting time penalties and
prejudgment interest. The court, applying the three-year statute of limitations in
Code of Civil Procedure section 338, awarded payments for meal and rest period
violations dating from October 2000. The court subsequently granted Murphy’s
motion for attorney fees and costs.
KCP appealed from the judgment of the trial court, arguing that the court
erred in addressing claims for meal and rest period and itemized pay statement
violations that had not been previously raised before the Labor Commissioner.
KCP also contended that the payments ordered for the meal and rest period
violations were penalties, and thus subject to the one-year statute of limitations in
Code of Civil Procedure section 340.2
The Court of Appeal affirmed in part and reversed in part, holding that
Labor Code section 226.73 payments assessed for meal and rest period violations

2
KCP also appealed the trial court’s determination that Murphy was a non-
exempt employee. The Court of Appeal concluded KCP’s argument “ha[d] no
merit” and affirmed the judgment of the trial court. KCP asked this court to
review the Court of Appeal’s decision regarding Murphy’s nonexempt status. We
declined to do so.
3
Unless otherwise stated, all further unlabeled statutory references are to the
Labor Code.
4


are penalties subject to a one-year statute of limitations and that claims may not be
raised for the first time on de novo appeal from an administrative hearing in front
of the Labor Commissioner. We granted plaintiff’s petition for review.
DISCUSSION
A. Section 226.7’s “Additional Hour of Pay” Constitutes Wages
Section 226.7, subdivision (a) provides, “No employer shall require any
employee to work during any meal or rest period mandated by an applicable order
of the Industrial Welfare Commission.”4 Subdivision (b) of section 226.7 further
provides that, “If an employer fails to provide an employee a meal period or rest
period in accordance with an applicable order of the Industrial Welfare
Commission, the employer shall pay the employee one additional hour of pay at
the employee’s regular rate of compensation for each work day that the meal or
rest period is not provided.” (Italics added.) The trial court concluded that KCP
did not provide Murphy the required meal or rest periods and accordingly awarded
Murphy an “additional hour of pay” for each day Murphy was forced to work
through a meal or rest period.
In deciding what statute of limitations governed Murphy’s claims, the trial
court considered whether the “additional hour of pay” provided for by section
226.7 constitutes a wage or a penalty. A three-year statute of limitations applies to
the former (Code Civ. Proc., § 338, subd. (a) [“An action upon a liability created
by statute, other than a penalty or forfeiture”]), while a one-year statute of

4
The Industrial Welfare Commission (IWC) is the state agency empowered
to formulate wage orders governing employment in California. (Tidewater
Marine Western, Inc. v. Bradshaw
(1996) 14 Cal.4th 557, 561.) The Legislature
defunded the IWC in 2004, however its wage orders remain in effect. (Huntington
Memorial Hospital v. Superior Court
(2005) 131 Cal.App.4th 893, 902, fn. 2.)
5


limitations governs claims for penalties (Code Civ. Proc., § 340, subd. (a) [“An
action upon a statute for a penalty or forfeiture”]). The trial court, analyzing the
statutory language and finding that the “hour of pay” primarily compensated
employees for working through meal and rest periods, concluded that the pay
provided for in the statute constitutes wages and is governed by the three-year
statute of limitations. The trial court awarded payments for violations starting in
October 2000.5 The Court of Appeal reversed without analyzing the statutory
language.
1. Statutory Language Suggests Section 226.7 Payment is a Wage
In determining whether the Legislature intended for the section 226.7
payment to constitute wages or a penalty, it is well-settled that we must look first
to the words of the statute, “because they generally provide the most reliable
indicator of legislative intent.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) If the
statutory language is clear and unambiguous our inquiry ends. “If there is no
ambiguity in the language, we presume the Legislature meant what it said and the
plain meaning of the statute governs.” (People v. Snook (1997) 16 Cal.4th 1210,
1215; Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th
1036, 1047.) In reading statutes, we are mindful that words are to be given their
plain and commonsense meaning. (Lungren v. Deukmejian (1988) 45 Cal.3d 727,
735.) We have also recognized that statutes governing conditions of employment
are to be construed broadly in favor of protecting employees. (Sav-On Drug
Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 340; Ramirez v. Yosemite

5
Murphy was employed by KCP from June 2000 to June 2002. From
October through December 2000, remedies for meal and rest period violations
were set out in an IWC wage order. Section 226.7 became effective on January 1,
2001.
6


Water Co. (1999) 20 Cal.4th 785, 794 (Ramirez); Lusardi Construction Co. v.
Aubry (1992) 1 Cal.4th 976, 985.) Only when the statute’s language is ambiguous
or susceptible of more than one reasonable interpretation, may the court turn to
extrinsic aids to assist in interpretation. (People v. Jefferson (1999) 21 Cal.4th 86,
94.)
The Labor Code defines “wages” as “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 methods of calculation.”
(§ 200, subd. (a).) Courts have recognized that “wages” also include those
benefits to which an employee is entitled as a part of his or her compensation,
including money, room, board, clothing, vacation pay, and sick pay. (E.g.,
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780; Department of
Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1091.)
A “penalty,” on the other hand, is that “which an individual is allowed to recover
against a wrong-doer, as a satisfaction for the wrong or injury suffered, and
without reference to the actual damage sustained . . . .” (County of Los Angeles v.
Ballerino (1893) 99 Cal. 593, 596 (Ballerino); see also County of San Diego v.
Milotz (1956) 46 Cal.2d 761, 766 (Milotz).) Penalties provide for “ ‘recovery of
damages additional to actual losses incurred, such as double or treble damages
. . . .’ ” (Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th
1236, 1242.)
Section 226.7, subdivision (b) requires that employees be paid “one
additional hour of pay” for each work day that they are required to work through a
meal or rest period. “Pay” is defined as “money [given] in return for goods or
services rendered.” (Am. Heritage Dict. (4th ed. 2000) p. 1291.) This definition
7
is in keeping with the Labor Code definition of “wages.”6 Pursuant to IWC wage
orders, employees are entitled to an unpaid 30-minute, duty-free meal period after
working for five hours and a paid 10-minute rest period per four hours of work.
(Cal. Code Regs., tit. 8, § 11070, subds. 11, 12.) If denied two paid rest periods in
an eight-hour work day, an employee essentially performs 20 minutes of “free”
work, i.e., the employee receives the same amount of compensation for working
through the rest periods that the employee would have received had he or she been
permitted to take the rest periods. An employee forced to forgo his or her meal
period similarly loses a benefit to which the law entitles him or her. While the
employee is paid for the 30 minutes of work, the employee has been deprived of
the right to be free of the employer’s control during the meal period. (Morillion v.
Royal Packing Co. (2000) 22 Cal.4th 575, 586 [uncompensated time is time
employees can effectively use “ ‘for [their] own purposes’ ”]; Bono Enterprises,
Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 975, disapproved on other grounds,
Tidewater Marine Western v. Bradshaw, supra, 14 Cal.4th at p. 574.) Section
226.7 provides the only compensation for these injuries.
While the language of section 226.7, which is to be interpreted broadly in
favor of protecting employees (Ramirez, supra, 20 Cal.4th at p. 794), appears to
indicate the “additional hour of pay” provided for in subdivision (b) is a wage to
compensate employees for the work described in subdivision (a), the language is
also reasonably susceptible of an interpretation that the hour of pay is a penalty

6
Indeed, the Legislature has frequently used the words “pay” or
“compensation” in the Labor Code as synonyms for “wages.” (E.g., §§ 96, subd.
(h) [“vacation pay” and “severance pay”], 511 [“overtime compensation”], 1043
[“time off with pay”].) The same is true of the IWC wage orders. (E.g., Cal. Code
Regs., tit. 8, § 11070, subds. 3 [“regular rate of pay” and “overtime
compensation”], 5 [“reporting time pay”].)
8


intended to punish the employer for denying employees their meal and rest
periods. As a result we look to extrinsic sources, such as the ostensible objectives
to be achieved by the statute, the evils to be remedied, the legislative history,
public policy, contemporaneous administrative construction and the statutory
scheme of which the statute is a part. (People v. Jefferson, supra, 21 Cal.4th at p.
94; People v. Coronado (1995) 12 Cal.4th 145, 151.)
2. Administrative and Legislative History Demonstrates Intent to
Establish a Premium Wage to Compensate Employees
We begin with the administrative and legislative history of the remedy for
missed meal and rest periods.7 Meal and rest periods have long been viewed as

7
The court notes that the DLSE’s interpretation of section 226.7 has not
been consistent. When enacted, section 226.7 was generally interpreted as
constituting “premium pay” or “wages.” (E.g., DLSE Opn. Letter No. 2001.09.17,
pp. 2-3 [“premium pay”]; DLSE Opn. Letter No. 2003.06.11, pp. 1-4 [“premium
wage, not a penalty”][withdrawn Dec. 20, 2004]; DLSE Opn. Letter 2003.10.17,
p. 6 [“premium pay”]; but see DLSE Opn. Letter 2001.04.02, p. 4, fn. 2 [“penalty
pay”][withdrawn Dec. 20, 2004].) Indeed, the DLSE represented Murphy as
cocounsel before the trial court, taking the position that section 226.7 pay
constitutes wages and submitting the June 11, 2003 opinion letter to the trial court.
However, as the DLSE has acknowledged, the issue became highly
politicized and, in December 2004, the DLSE withdrew four opinion letters
discussing section 226.7. The DLSE then issued proposed regulations and a
precedent decision interpreting the remedy as a penalty (Hartwig v. Orchard
Commercial, Inc.
(DLSE Precedent Dec. No. 2005-001, May 11, 2005); Gov.
Code § 11425.60, subd. (b)), a “180 degree turn from its prior interpretations of
that statute.” (Sweeney, Filling in the Gaps: The Scope of Administrative
Agencies’ Power to Enact Regulations
(2006) 27 Whittier L. Rev. 621, 662;
Cornn et al. v. United Parcel Service, Inc. (N.D.Cal. Mar. 14, 2005, CV No. 03-
2001) 2005 WL 588431 p. *4 [“DLSE’s position has changed”].)
While the DLSE’s construction of a statute is entitled to consideration and
respect, it is not binding and it is ultimately for the judiciary to interpret this
statute. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th
1, 7-8.) Additionally, when an agency’s construction “ ‘flatly contradicts’ ” its
(Footnote continued on next page.)
9


part of the remedial worker protection framework. (Industrial Welfare Com. v.
Superior Court (1980) 27 Cal.3d 690, 724; Bono Enterprises, Inc. v. Bradshaw,
supra, 32 Cal.App.4th at p. 975.) Concerned with the health and welfare of
employees, the IWC issued wage orders mandating the provision of meal and rest
periods in 1916 and 1932, respectively. (Cal. Manufacturers Assn. v. Industrial
Welfare Com. (1980) 109 Cal.App.3d 95, 114-115.) The wage orders required
meal and rest periods after specified hours of work. The only remedy available to
employees, however, was injunctive relief aimed at preventing future abuse. In
2000, due to a lack of employer compliance, the IWC added a pay remedy to the
wage orders, providing that employers who fail to provide a meal or rest period
“shall pay the employee one (1) hour of pay at the employee’s regular rate of
compensation for each work day” that the period is not provided.8 (Cal. Code
Regs., tit. 8, § 11070, subds. 11(D), 12(B).)9
At the same time that the IWC was adding the pay remedy,
Assemblymember Darrell Steinberg introduced Assembly Bill No. 2509 (1999-
2000 Reg. Sess.) (Bill No. 2509) to codify a pay remedy via proposed section
226.7. (Bill No. 2509, § 12, as introduced Feb. 24, 2000.) In its original iteration,
Bill No. 2509 proposed a dual strategy to address the problem of employees being

(Footnote continued from previous page.)

original interpretation, it is not entitled to “significant deference.” (Henning v.
Industrial Welfare Com.
(1988) 46 Cal.3d 1262, 1278.)
8
The IWC added the remedy to sections 11 and 12 of the wage order, rather
than section 20, which deals with penalties.
9
The trial court determined that the wage order regulating wages, hours, and
working conditions in the mercantile industry governed Murphy’s employment.
(Cal. Code Regs., tit. 8, § 11070.)
10


forced to work through their meal and rest periods: (1) an explicit penalty
provision, and (2) a separate payment to employees. (Bill No. 2509, § 12, as
introduced Feb. 24, 2000.) The penalty provision provided that employers who
failed to provide meal or rest periods would be subject to “A civil penalty of fifty
dollars ($50) per employee per violation.”10 (Bill No. 2509, § 12, as introduced
Feb. 24, 2000.) The employee payment provision in the original bill was similar
to the one ultimately enacted (§ 226.7, subd. (b)). Employees who did not receive
the mandated meal or rest periods would be paid an “amount equal to twice [the
employee’s] average hourly rate of compensation for the full length of the meal or
rest periods during which the employee was required to perform any work.” (Bill
No. 2509, § 12, as introduced Feb. 24, 2000.) Although the original version of
Bill No. 2509 provided for both a penalty and a payment to the employee, it
limited the employees’ recovery to the payment, leaving collection of the penalty
to the Labor Commissioner, as had been the typical practice. (Ibid.; e.g., Caliber
Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 370 [Labor
Commissioner assesses and collects civil penalties]; e.g., § 210.)11

10
This provision is akin to the penalties described in cases cited by the Court
of Appeal, which involved awards of “an arbitrary sum in addition to, and
unrelated to, actual damages . . . .” (E.g., Prudential Home Mortgage Co. v.
Superior Court
, supra, 66 Cal.App.4th at p. 1243; Ballerino, supra, 99 Cal. at p.
596; Milotz, supra, 46 Cal.2d at p. 766.)
11
The Legislature later adopted the Labor Code Private Attorneys General
Act of 2004 (§ 2698 et seq.) permitting, as an alternative, an aggrieved employee
to initiate a private civil action to recover civil penalties if the Labor
Commissioner does not do so. The penalties collected in these private civil
actions are to be distributed 75 percent to the state and 25 percent to the aggrieved
employee.
11


That the authors of Bill No. 2509 believed that the payment to the
employee contained in the original version was independent of (and different
from) its penalty provision is apparent both from the plain language of the
proposed statute and from comments in the Legislative Counsel’s Digest and
legislative committee reports. The Legislative Counsel’s Digest for Bill No. 2509,
in describing the effect of the proposed section 226.7, stated that it would subject
employers both to a “penalty of $50 per violation and liab[ility] to the employee
for twice the employee’s average hourly . . . pay.” (Legis. Counsel Dig., Bill No.
2509, p. 4, as introduced Feb. 24, 2000, italics added.) Legislative committees
underscored that the payment to the employee was not considered a penalty by use
of the disjunctive, describing remedies available under Bill No. 2509 as “damages
or penalties.” (Assem. Com. on Lab. & Employment, Rep. on Bill No. 2509 (Apr.
12, 2000) p. 3; Assem. Com. on Appropriations, Rep. on Bill No. 2509 (May 10,
2000) p. 1, italics added.)
The Senate later amended Bill No. 2509, deleting the penalty provision.
(Sen. Amend. to Bill No. 2509 (Aug. 25, 2000), pp. 20-23.) This deletion, far
from supporting KCP’s position, is further evidence against it. “The rejection of a
specific provision contained in an act as originally introduced is ‘most persuasive’
that the act should not be interpreted to include what was left out.” (Wilson v. City
of Laguna Beach (1992) 6 Cal.App.4th 543, 555.) Indeed, the Legislature
certainly knows how to impose a penalty when it wants to, having established
penalties in many Labor Code statutes by using the word “penalty.” In the vast
majority of those statutes, the Legislature chose a fixed, arbitrary amount for the
penalty. (E.g., §§ 226.3 [$250 for first violation, $1000 for subsequent
violations], 1197.1 [$100 for initial violation, $250 for subsequent violations].)
Other penalties took the form of double or treble damages. (E.g., §§ 230.8 [three
times lost wages and benefits], 2140.8 [double health insurance coverage fee].)
12
These penalties are imposed in addition to any compensation for damages. (E.g.,
§§ 230.8 [penalty is in addition to recovery of lost wages], 1197.1 [penalty is in
addition to recovery of unpaid wages].) All of these penalties are unlike the
remedy contained in section 226.7, which provides the sole compensation for the
employee’s injuries, is measured by the employee’s rate of pay rather than an
arbitrary amount, and is not labeled a penalty.
The amendment to Bill No. 2509 made several other critical modifications.
It changed the amount to be paid from twice the employee’s rate of hourly
compensation to “one additional hour of pay at the employee’s regular rate of
compensation . . . .” (Sen. Amend. to Bill No. 2509 (Aug. 25, 2000), p. 23.) In
discussing the amended version of section 226.7, which ultimately was signed into
law, the Senate Rules Committee explained that the changes were intended to
track the existing provisions of the IWC wage orders regarding meal and rest
periods. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of
Bill. No. 2509, as amended Aug. 25, 2000, p. 4.) The committee further stated
that “[f]ailure to provide such meal and rest periods would subject an employer to
paying the worker one hour of wages for each work day when rest periods were
not offered” (ibid., italics added), thereby indicating that it considered the
“additional hour of pay” a wage rather than a penalty.
The Senate amendments also eliminated the requirement that an employee
file an enforcement action, instead creating an affirmative obligation on the
employer to pay the employee one hour of pay. (§ 226.7, subd. (b).) Under the
amended version of section 226.7, an employee is entitled to the additional hour of
pay immediately upon being forced to miss a rest or meal period. In that way, a
payment owed pursuant to section 226.7 is akin to an employee’s immediate
entitlement to payment of wages or for overtime. (See Kerr’s Catering Service v.
Department of Industrial Relations (1962) 57 Cal.2d 319, 326.) By contrast,
13
Labor Code provisions imposing penalties state that employers are “subject to”
penalties and the employee or Labor Commissioner must first take some action to
enforce them. The right to a penalty, unlike section 226.7 pay, does not vest until
someone has taken action to enforce it. (People v. Durbin (1966) 64 Cal.2d 474,
479.)
This version of Bill No. 2509 was ultimately passed by the Legislature and
chaptered on September 29, 2000. The Legislature’s decision not to label the
section 226.7 payment a penalty is particularly instructive because it
simultaneously established penalties explicitly labeled as such in provisions of Bill
No. 2509 related to sections 203.1 and 226. (Bill No. 2509, as approved by
Governor, Sept. 28, 2000, §§ 3, 6.) In section 203.1, the Legislature imposed a
penalty on employers who pay an employee with a check, draft, or voucher that
subsequently is refused for insufficient funds. (§ 203.1 [wages continue as a
penalty].) In section 226, the Legislature imposed a penalty on employers who
fail to provide itemized wage statements that comply with the Labor Code. (§
226, subd. (e) [$50 for initial violation, $100 for subsequent violations].) That the
Legislature chose to eliminate penalty language in section 226.7 while retaining
the use of the word in other provisions of Bill No. 2509 is further evidence that the
Legislature did not intend section 226.7 to constitute a penalty. (Penasquitos, Inc.
v. Superior Court (1991) 53 Cal.3d 1180, 1188-1189.)
In addition, the Legislature indicated in section 203 that it was aware it
could, if it so desired, trigger a one-year statute of limitations by labeling a remedy
a penalty. When an employer fails to pay an employee who has quit or been
discharged, section 203 establishes that the unpaid wages continue to accrue as a
“penalty” for up to 30 days. Knowing that remedies constituting penalties are
typically governed by a one-year statute of limitations, the Legislature expressly
provided that a suit seeking to enforce the section 203 penalty would be subject to
14
the same three-year statute of limitations as an action to recover wages. (§ 203.)
It can be inferred from this that, had the Legislature intended section 226.7 to be
governed by a one-year statute of limitations, the Legislature knew it could have
so indicated by unambiguously labeling it a “penalty.”
The Court of Appeal correctly notes that, while the word “penalty” was
removed from section 226.7, the word appears at various times in both the
legislative history of section 226.7 as well as the transcripts of IWC hearings at
which the pay remedy was discussed. (Assem. Floor Analysis, Bill No. 2509, as
amended Aug. 25, 2000, p. 2; Transcript, IWC Public Hearing (June 30, 2000)
p. 30, available online at <http://www.dir.ca.gov/IWC/PUBHRG6302000.pdf> [as
of Apr. 16, 2007].) However, as explained below, statements made by IWC
commissioners during hearings discussing the “hour of pay” remedy for meal and
rest period violations leave no doubt that the remedy was being adopted as a
“penalty” in the same way that overtime pay is a “penalty,” although it is clear that
overtime pay is considered a wage and governed by a three-year statute of
limitations. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th
163, 167 (Cortez).)
As has been recognized, in providing for overtime pay, the Legislature
simultaneously created a premium pay to compensate employees for working in
excess of eight hours while also creating a device “for enforcing limitation on the
maximum number of hours of work . . . , to wit, it is a maximum hour enforcement
device . . . .” (California Manufacturers Assn. v. Industrial Welfare Com., supra,
109 Cal.App.3d at p. 111.) Indeed, as the Court of Appeal acknowledges, courts
have often referred to overtime wages as “premium or penalty pay.” (E.g.,
Industrial Welfare Com. v. Superior Court, supra, 27 Cal.3d at p. 713 [“premium
or penalty pay for overtime work”]; Skyline Homes, Inc. v. Department of
Industrial Relations (1985) 165 Cal.App.3d 239, 249 [overtime is “premium or
15
penalty”].) Describing overtime pay as both a “penalty” and as “premium pay”
acknowledges that, while its central purpose is to compensate employees for their
time, it also serves a secondary function of shaping employer conduct. However,
neither the behavior-shaping aspect of overtime pay nor the fact that courts have
referred to the remedy as a “penalty” transforms overtime wages into a “penalty”
for the purpose of statute of limitations. (Cortez, supra, 23 Cal.4th at p. 167.)
It is in this same sense that the IWC used the word “penalty” to describe the
meal and rest period remedy. For example, in the June 30, 2000 hearing at which
the IWC adopted the “hour of pay” remedy, IWC Commissioner Barry Broad
described the remedy as a “penalty,” explaining that it was needed to help force
employers to provide meal and rest periods. (Transcript, IWC Public Hearing
(June 30, 2000), pp. 25-26, 30, available online at <http://www.dir.ca.gov/IWC/
PUBHRG6302000.pdf> [as of Apr. 16, 2007].) “This [meal and rest pay
provision applies to] an employer who says, ‘You do not get lunch today, you do
not get your rest break, you must work now.’ That is – that is the intent. . . . And,
of course, the courts have long construed overtime as a penalty, in effect, on
employers for working people more than full – you know, that is how it’s been
construed, as more than the – the daily normal workday. It is viewed as a penalty
and a disincentive in order to encourage employers not to. So, it is in the same
authority that we provide overtime pay that we provide this extra hour of pay.”
(Id. at p. 30, italics added.)
The IWC intended that, like overtime pay provisions, payment for missed
meal and rest periods be enacted as a premium wage to compensate employees,
while also acting as an incentive for employers to comply with labor standards.
The manner in which the IWC used the word “penalty” undermines the Court of
Appeal’s reliance on the use of the word in the legislative history. The Court of
Appeal points to a statement contained in the Assembly Floor analysis of the
16
amended version of Bill No. 2509, which provided that the Senate’s removal of
the explicit penalty provision from section 226.7 “[d]elete[d] the provisions
related to penalties for an employer who fails to provide a meal or rest period, and
instead codif[ied] the lower penalty amounts adopted by the Industrial Welfare
Commission (IWC).” (Assem. Floor Analysis, Bill No. 2509, as amended Aug.
25, 2000, p. 2.) However, the legislative history of Bill No. 2509 establishes that
the Legislature was fully aware of the IWC’s wage orders in enacting section
226.7. It follows that the Legislature’s occasional description of the meal and rest
period remedy as a “penalty” in the legislative history should be informed by the
way in which the IWC was using the word; namely, that like overtime pay, the
meal and rest period remedy has a corollary disincentive aspect in addition to its
central compensatory purpose.12
We conclude that the administrative and legislative history of the statute
indicates that, whatever incidental behavior-shaping purpose section 226.7 serves,
the Legislature intended section 226.7 first and foremost to compensate employees
for their injuries. This conclusion is consistent with our prior holdings that
statutes regulating conditions of employment are to be liberally construed with an
eye to protecting employees. (Sav-On Drug Stores, Inc. v. Superior Court, supra,
34 Cal.4th at p. 340; Ramirez, supra, 20 Cal.4th at p. 794; Lusardi Construction
Co. v. Aubry, supra, 1 Cal.4th at p. 985.)

12
Assemblymember Steinberg wrote a letter urging Governor Gray Davis to
sign Bill No. 2509. (Assemblymember Steinberg, letter to Governor Davis, Sept.
8, 2000.) Steinberg wrote that “the bill codifies the actions of the IWC
establishing a penalty . . . .” (Id. at p. 2.) The use of the word “penalty” must be
similarly read in light of the IWC’s use of the word to describe the pay remedy.
Additionally, we do not consider the “ ‘motives or understandings of individual
legislators,’ ” including the bill’s author. (California Teachers Assn. v. San Diego
Community College Dist.
(1981) 28 Cal.3d 692, 699-700.)
17


3. “Functional” Analysis Does Not Undermine Conclusion That
Payment Constitutes a Wage
In concluding that the payment to the employee at issue here is a penalty,
the Court of Appeal relied on what KCP describes as a “functional” analysis of the
payment’s effect.13 The Court of Appeal reasoned that its conclusion is supported
first by the remedy’s purpose of shaping employer behavior and second by the fact
that the “additional hour of pay” is imposed without regard to the actual loss
suffered. Neither rationale is persuasive.
The first argument need not detain us long. As already discussed, the fact
that section 226.7 seeks to shape employer behavior in addition to compensating
the employee does not automatically render the remedy a penalty. Overtime pay is
only one such example of a dual-purpose remedy that is primarily intended to
compensate employees, but also has a corollary purpose of shaping employer
conduct. Reporting-time and split-shift pay serve a similar dual function. (See
Huntington Memorial Hospital v. Superior Court, supra, 131 Cal.App.4th at pp.
909-910.) For example, under IWC wage orders, when an employee is required to
report for work and does report, but is not put to work or is given less than half the
scheduled work, “the employee shall be paid for half the usual or scheduled day’s
work, but in no event for less than two (2) hours nor more than four (4) hours, at
the employee’s regular rate of pay . . . .” (Cal. Code Regs., tit. 8, § 11070, subd.
5(A).) When an employee is required to work a “split shift” (is scheduled for two
nonconsecutive shifts in the same day), the employer must pay the employee one

13
None of the cases on which the Court of Appeal and KCP rely for their
“functional” analysis involve the construction of Labor Code provisions, which
are to be interpreted broadly in favor of the employee. (Ramirez, supra, 20
Cal.4th at p. 794.) Additionally, almost without exception, the statutes construed
are part of schemes providing separate compensatory and punitive remedies,
unlike section 226.7.
18


additional hour of wages. (Cal. Code Regs., tit. 8, § 11070, subd. 4(C); see
Caliber Bodyworks, Inc. v. Superior Court, supra, 134 Cal.App.4th at p. 381.)
In addition to compensating employees, reporting-time and split-shift pay
provisions “encourag[e] proper notice and scheduling . . . [and are] an appropriate
device for enforcing proper scheduling consistent with maximum hours and
minimum pay requirements.” (California Manufacturers Assn. v. Industrial
Welfare Com., supra, 109 Cal.App.3d at p. 112.) As with overtime, reporting-
time and split-shift pay provisions do not become penalties for statute of
limitations purposes simply because they seek to shape employer conduct in
addition to compensating employees. (See Caliber Bodyworks, Inc. v. Superior
Court, supra, 134 Cal.App.4th at pp. 377, 381 [split-shift pay is wages];
Huntington Memorial Hospital v. Superior Court, supra, 131 Cal.App.4th at pp.
909-910 [reporting-time pay is compensation].)
The Court of Appeal sought to distinguish overtime and other forms of
wages from payments under Labor Code section 226.7, arguing that because
section 226.7 mandates that employers provide meal and rest periods, the pay
provided for must constitute a penalty. But the Court of Appeal’s underlying
assumption, that payments made pursuant to statutory liability must constitute a
penalty, is incorrect. For example, an employer’s “[f]ailure to promptly pay
[overtime wages] is unlawful.” (Cortez, supra, 23 Cal.4th at p. 168.) Yet, the
money recovered under Business and Professions Code section 17203 for an
unlawful business practice is for disgorgement of the overtime wages and does not
constitute a penalty. (Id. at pp. 173-179.) Similarly, the Labor Code mandates the
payment of a minimum wage and makes the payment of a lesser amount
“unlawful.” (§ 1197.) Nonetheless, this prohibition does not convert the remedy
of recovering the unpaid balance of the full amount of the minimum wage (§ 1194,
19
subd. (a)) into something other than a wage subject to a three-year statute of
limitations.
KCP’s second argument is that the “additional hour of pay” is a penalty
because it is imposed without reference to actual damage, since an hour of pay is
owed whether the employee has missed an unpaid 30-minute meal period, two
paid 10-minute rest periods, or some combination thereof. We disagree. Section
226.7 pay is not transformed into a penalty merely because a one-to-one ratio does
not exist between the economic injury caused by meal and rest period violations
on the one hand and the remedy selected by the Legislature on the other hand.
The Legislature has assigned different amounts to compensate employees for
certain kinds of labor or scheduling resulting in a detriment to the employee.
Courts have long recognized that the monetary value of harm to employees can be
difficult to ascertain. (See, e.g., California State Council of Carpenters v.
Superior Court (1970) 11 Cal.App.3d 144, 162 [finding liquidated damages
provision to be compensatory].) Where damages are obscure and difficult to
prove, the Legislature may select a set amount of compensation without
converting that remedy into a penalty. (Overnight Motor Transp. Co. v. Missell
(1942) 316 U.S. 572, 583-84.)
For example, employees are paid one and one-half times their regular rate
of pay for each hour of labor over eight hours. (§ 510, subd. (a).) Employees are
paid twice their regular rate of pay for hours worked in excess of 12 hours in a
single day. (Ibid.) In the context of reporting-time pay, an employer must pay up
to four hours of wages even if the employee performed no work. (Cal Code Regs.,
tit. 8, § 11070, subd. 5.) When working a split shift, employees are entitled to an
additional hour of wages, even though the employee is already compensated for
the hours he or she actually works. (Id., subd. 4(C).)
20
Each of these forms of compensation, like the section 226.7 payment, uses
the employee’s rate of compensation as the measure of pay and compensates the
employee for events other than time spent working. An employee working nine
hours already receives his or her normal wage for that ninth hour. The Legislature
has directed, however, that employers pay a premium wage of 50 percent more for
the ninth through twelfth hour and a 100 percent premium for the hours in excess
of 12. Employees receive reporting-time and split-shift compensation, even
though they are already paid for the time they actually spend working.
The Court of Appeal’s focus on the apparent lack of a perfect correlation
between the section 226.7 remedy and the employee’s economic injury also
ignores the noneconomic injuries employees suffer from being forced to work
through rest and meal periods. Employees denied their rest and meal periods face
greater risk of work-related accidents and increased stress, especially low-wage
workers who often perform manual labor. (See, e.g., Tucker et al., Rest Breaks
and Accident Risk (Feb. 22, 2003) The Lancet, p. 680; Dababneh et al., Impact of
Added Rest Breaks on the Productivity and Well Being of Workers (2001) 44 pt. 2
Ergonomics, pp. 164-174; Kenner, Working Time, Jaeger and the Seven-Year Itch
(2004/2005) 11 Colum. J. Eur. L. 53, 55.) Indeed, health and safety
considerations (rather than purely economic injuries) are what motivated the IWC
to adopt mandatory meal and rest periods in the first place. (Cal. Manufacturers
Assn. v. Industrial Welfare Com., supra, 109 Cal.App.3d at pp. 114-115.)
Additionally, being forced to forgo rest and meal periods denies employees time
free from employer control that is often needed to be able to accomplish important
personal tasks. (Morillion v. Royal Packing Co., supra, 22 Cal.4th at p. 586.)
While it may be difficult to assign a value to these noneconomic injuries
(see California State Council of Carpenters v. Superior Court, supra, 11
Cal.App.3d at p. 162), the Legislature has selected an amount of compensation it
21
deems appropriate. Indeed, construing the “one additional hour of pay at the
employee’s regular rate of compensation” (§ 226.7, subd. (b)) as a penalty would
illogically result in an employer being “penalized” less or more, depending on the
affected employee’s rate of pay. Employers of the low-wage workers likeliest to
suffer violations of section 226.7 (and, arguably, at greatest risk of injury) would
be “penalized” less than employers of highly paid workers. That the amount of
the payment is linked to an employee’s rate of compensation, rather than a
prescribed fixed amount, further supports the position that section 226.7 payments
are a form of wages. We conclude that neither the behavior-shaping function of
section 226.7 nor the lack of a perfect fit between the pay remedy and the injury
compel classifying the remedy as a penalty.
Finally, we recognize that the primary purpose of the statutes of limitation
is to prevent plaintiffs from asserting stale claims once evidence is no longer fresh
and witnesses are no longer available. (Davies v. Krasna (1975) 14 Cal.3d 502,
512.) Because employers are required to keep all time records, including records
of meal periods, for a minimum of three years (Cal. Code Regs., tit. 8, § 11070,
subd. 7(A)(3) & (C)), employers should have the evidence necessary to defend
against plaintiffs’ claims. (See Cicairos v. Summit Logistics (2005) 133
Cal.App.4th 949, 961.)
Accordingly, we hold that the Court of Appeal erred in construing section
226.7 as a penalty and applying a one-year statute of limitations. The statute’s
plain language, the administrative and legislative history, and the compensatory
purpose of the remedy compel the conclusion that the “additional hour of pay”
(ibid.) is a premium wage intended to compensate employees, not a penalty.
22
B. Scope of Section 98.2 De Novo Trial May Include Additional
Related Wage Claims
As recounted, Murphy filed a wage claim with the Labor Commissioner,
only raising claims for unpaid overtime and waiting-time penalties, unaware he
could also assert claims for meal and rest period and itemized pay statement
violations. After the Labor Commissioner issued a decision in Murphy’s favor,
KCP filed a notice for de novo review, vesting jurisdiction in the superior court.
Murphy, this time with the assistance of the Civil Justice Clinic and the DLSE,
filed a “Notice of Claims and Issues at De Novo Trial of Wage Claim,” asserting
claims for meal and rest period and itemized pay statement violations in addition
to the claims for unpaid overtime, interest, and waiting-time penalties. KCP
objected to the introduction of the new claims, but the trial court overruled the
objection and ultimately ruled in Murphy’s favor on each claim. KCP contends
the trial court erred in considering Murphy’s additional claims. We disagree.

1. Overview of the Berman Hearing Process
In two recent cases, Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345
(Smith), and Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942 (Post), we
provided an extensive overview of the administrative wage claim process
(commonly known as the Berman hearing procedure, after the name of its
sponsor), including the de novo review provided for in section 98.2. (§ 98 et seq.)
An employee pursuing a wage-related claim “ ‘has two principal options. The
employee may seek judicial relief by filing an ordinary civil action against the
employer for breach of contract and/or for the wages prescribed by statute.
[Citation.] Or the employee may seek administrative relief by filing a wage claim
with the [commissioner] pursuant to a special statutory scheme codified in
sections 98 to 98.8 . . . .’ ” (Smith, supra, 29 Cal.4th at p. 350, citing Cuadra v.
23


Millan (1998) 17 Cal.4th 855, 858 (Cuadra), disapproved on another ground in
Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4.)
The Labor Commissioner “has broad authority to investigate employee
complaints and to conduct hearings in actions ‘to recover wages, penalties, and
other demands for compensation . . . .’ [Citation.]” (Smith, supra, 29 Cal.4th at
p. 355.) “Within 30 days of the filing of a complaint, the commissioner must
notify parties as to whether he or she will take further action. [Citation.] The
statute provides for three alternatives: the commissioner may either accept the
matter and conduct an administrative hearing [citation], prosecute a civil action for
the collection of wages and other money payable to employees arising out of an
employment relationship [citation], or take no further action on the complaint.
[Citation.]” (Post, supra, 23 Cal.4th at p. 946.) If the commissioner decides to
accept the matter and conduct an administrative hearing, he or she must hold the
hearing within 90 days. (Ibid.)
“Labor Code section 98, subdivision (a), expressly declares the legislative
intent that hearings be conducted ‘in an informal setting preserving the right of the
parties.’ The Berman hearing procedure is designed to provide a speedy, informal,
and affordable method of resolving wage claims. [Citation.] As we explained in
Cuadra, [supra, 17 Cal.4th at page 869] ‘the purpose of the Berman hearing
procedure is to avoid recourse to costly and time-consuming judicial proceedings
in all but the most complex of wage claims.’ [Citation.] [¶] . . . [¶]
“Within 15 days after the Berman hearing is concluded, the commissioner
must file a copy of his or her order, decision, or award and serve notice thereof on
the parties. [Citation.] The order, decision, or award must include a summary of
the hearing and the reasons for the decision, and must advise the parties of their
right to appeal. [Citation.]
24

“Within 10 days after service of notice, the parties may seek review by
filing an appeal to the municipal or superior court ‘in accordance with the
appropriate rules of jurisdiction, where the appeal shall be heard de novo.’
[Citation.] The timely filing of a notice of appeal forestalls the commissioner’s
decision, terminates his or her jurisdiction, and vests jurisdiction to conduct a
hearing de novo in the appropriate court. [Citation.]” (Post, supra, 23 Cal.4th at
p. 947.)14 “Although denoted an ‘appeal,’ unlike a conventional appeal in a civil
action, hearing under the Labor Code is de novo. [Citation.] ‘A hearing de novo
[under Labor Code section 98.2] literally means a new hearing, that is, a new
trial.’ [Citation.] The decision of the commissioner is ‘entitled to no weight
whatsoever, and the proceedings are truly “a trial anew in the fullest sense.” ’
[Citation.] The decision of the trial court, after de novo hearing, is subject to a
conventional appeal to an appropriate appellate court. [Citation.] Review is of the
facts presented to the trial court, which may include entirely new evidence.
[Citations.]” (Post, supra, 23 Cal.4th at pp. 947-948.)
2. Trial Courts Have Discretion to Permit Additional Related Wage
Claims at Section 98.2 De Novo Trial
The issue presented here, whether the trial court properly permitted
additional related wage claims in the de novo trial that were not first considered by
the Labor Commissioner, appears to be one of first impression. Section 98.2,

14
Although section 98 sets forth a maximum period of 145 days from the
filing of a claim to a de novo appeal, we have acknowledged that section 98
authorizes the Labor Commissioner to “postpone or grant additional time.” (§ 98,
subd. (a); Cuadra, supra, 17 Cal.4th at p. 860.) Other procedures have been
adopted that may “lengthen[ ] still further” the Berman process. (Id. at pp. 860-
861.) As a result, the Berman process often takes significantly longer than 145
days. (Id. at pp. 860, 863.) Indeed, almost 10 months passed between the time
Murphy filed his wage claim and KCP filed its notice of appeal.
25


subdivision (a), provides “Within 10 days after service of notice of an order,
decision, or award the parties may seek review by filing an appeal to the superior
court, where the appeal shall be heard de novo.” In reversing the trial court’s
decision to consider the new claims, the Court of Appeal focused on the word
“review,” reasoning that the word limited the trial court’s jurisdiction to a review
of the claims considered by the Labor Commissioner.
We have previously held that the section 98.2 proceeding is neither a
conventional appeal nor review of the Labor Commissioner’s decision, but is
rather a de novo trial of the wage dispute. (Pressler v. Bren Co. (1982) 32 Cal.3d
831, 835-836, citing Collier & Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205
(Collier & Wallis).) The trial court “hears the matter, not as an appellate court, but
as a court of original jurisdiction, with full power to hear and determine it as if it
had never been before the labor commissioner.” (Collier & Wallis, supra, 9
Cal.2d at p. 205; Smith, supra, 29 Cal.4th 345, 377 (conc. & dis. opn. of Kennard,
J.).) An employee need not administratively exhaust his claim before filing a civil
action. (Smith, supra, 29 Cal.4th at p. 355.) Our previous decisions suggest that a
trial court’s power to hear a wage dispute extends to the consideration of related
issues not reached by the Labor Commissioner.
In
Post, after conducting a Berman hearing on an employee’s wage claim,
the Labor Commissioner dismissed the claim on the ground than an employee-
employer relationship had not been conclusively established. (Post, supra, 23
Cal.4th at p. 944.) The employee filed a section 98.2 notice of appeal and, after a
de novo trial, the superior court found that the existence of an employment
relationship had been established. (Id. at p. 945.) Even though the Labor
Commissioner had not reached the employee’s claim for unpaid wages, the trial
court proceeded to consider the wage claim and found in favor of the employee.
(Ibid.) The Court of Appeal reversed, concluding that the trial court lacked
26
jurisdiction to review the Labor Commissioner’s jurisdictional determination and
that the employee’s sole remedy was to file an original civil action. (Id. at p. 946.)
We disagreed, holding that the section 98.2 de novo hearing constitutes a new trial
and that the statute does not restrict a trial court’s authority “to address a disputed
question concerning any issue of law or fact . . . .” (Id. at pp. 949-950.)
The Court of Appeal here distinguished Post, stating that there, the issue
considered by the trial court and Labor Commissioner was identical, i.e., whether
an employee-employer relationship existed. However, this characterization of
Post ignores the fact that the trial court went beyond the scope of what the Labor
Commissioner reached and considered the employee’s claim for unpaid wages.
Here, the trial court analogously exercised its discretion to consider wage claims
that, while not previously considered by the Labor Commissioner, legally and
factually flow from the same underlying wage dispute—KCP’s misclassification
of Murphy as an exempt employee.15
Permitting trial courts to exercise jurisdiction over the entire wage dispute,
including related wage claims not raised in front of the Labor Commissioner, is
consistent with trial courts’ broad discretion in adjudicating claims at trial.
(Rutherford v. Owen-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) In Sales
Dimensions v. Superior Court, the Court of Appeal considered whether a trial
court could deny discovery in a section 98.2 de novo trial and deny a motion to
consolidate a pending civil action with the de novo trial. (Sales Dimensions,

15
Murphy concedes that he could not have raised a non-wage-related claim
such as a defamation or personal injury claim in the de novo trial. Indeed, a trial
court exercising its discretion could determine that claims were not sufficiently
related to allow their addition to the de novo trial. (Sales Dimensions v. Superior
Court
(1979) 90 Cal.App.3d 757, 764 (Sales Dimensions).)
27


supra, 90 Cal.App.3d at p. 759.) The Court of Appeal held that both issues were
properly left to the discretion of the trial court, an approach “consistent with the
power of the courts ‘to adopt any suitable method of practice, both in ordinary
actions and special proceedings, if the procedure is not specified by statute or by
rules adopted by the Judicial Council.’ [Citations.]” (Id. at p. 763.) The Court of
Appeal noted that while section 98.2 vests the superior court with jurisdiction to
hear the appeal de novo, “no procedures for exercising that jurisdiction are
specified.” (Sales Dimensions, supra, 90 Cal.App.3d at p. 764.) Similarly,
whether an employee should be permitted to raise additional claims in the de novo
proceeding is best left to the sound discretion of trial courts. Trial courts are
equipped to weigh the various considerations, e.g., whether the claims are
sufficiently related, whether the interests of judicial economy will be served, and
whether the employer will be prejudiced.
As the Court of Appeal here acknowledged, Murphy could have filed a
separate civil complaint raising the additional wage claims, at which point the trial
court could have consolidated the civil action with the de novo proceeding and
considered all of the claims together.16 (Sales Dimensions, supra, 90 Cal.App.3d
at p. 764.) However, forcing Murphy to file an original civil action to raise the
additional claims “would appear inconsistent with the legislative purpose under
Labor Code section 98 of providing an expeditious resolution of wage claims

16
The trial court ruled that Murphy’s claims for meal and rest period and
itemized wage statement violations related back to the date of the original wage
claim in October 2002. (See Cuadra, supra, 17 Cal.4th at pp. 869-870.)
Murphy’s claim for itemized wage statement violations, although undisputedly
governed by a one-year statute of limitations, was accordingly timely. KCP did
not appeal, nor did the Court of Appeal disturb, that aspect of the trial court’s
ruling.
28


. . . .” (Post, supra, 23 Cal.4th at p. 951.) It is unclear what interest would be
served by allowing trial courts to consolidate claims contained in a civil action
with those at issue in a de novo trial, but prohibiting trial courts from exercising
their discretion to permit employees to raise additional wage-related claims at the
de novo trial.
Furthermore, the Court of Appeal’s conclusion that the trial court erred in
considering the additional wage claims undermines the legislative policy of
encouraging employees to use the Berman process. For example, Murphy could
not have raised his claims for itemized pay statements (§ 226) in the Berman
process. Murphy submits the declaration of the Senior Deputy Labor
Commissioner from the San Francisco DLSE District Office to the trial court,
which averred that the Labor Commissioner “does not process claims for record-
keeping violations pursuant to California Labor Code 226(e). An individual who
wanted to pursue such a claim before our office would be told that the claim could
not be brought in our office, and would have to be filed in court.”
If, as the Court of Appeal concluded, employees could not raise claims for
itemized pay statement violations for the first time in a de novo hearing, three
options would remain. An employee could: (1) file a civil complaint for the
itemized pay statement violations and a separate wage claim before the Labor
Commissioner for other wage claims and simultaneously pursue both avenues;
(2) forego the right to penalties for itemized pay statement violations, since by the
time the Labor Commissioner issues a decision and a party files an appeal, the
one-year statute of limitations governing penalties for itemized pay statement
violations will almost certainly have run; or (3) forego pursuing the Berman
process and instead pursue civil litigation.
Each of these options discourages use of the Berman process and increases
pressure to pursue civil litigation, a result at odds with the notion of a
29
legislatively-favored administrative alternative to the judicial process. (See Smith,
supra, 29 Cal.4th 345, 378-379 (conc. & dis. opn. of Kennard, J.).) The
Legislature could not have intended to force employees to choose between
effectively waiving claims and pursuing the Berman process. The Court of
Appeal’s interpretation of section 98.2 would put an employee using the Berman
process in a worse position than an employee proceeding directly to court. (See
Smith, supra, 29 Cal.4th at pp. 378-379 (conc. & dis. opn. of Kennard, J.);
Cuadra, supra, 17 Cal.4th at p. 870.)
Finally, allowing trial courts to exercise their discretion in deciding whether
to permit employees to raise additional related wage claims is consistent with the
Legislature’s intent “to discourage frivolous and unmeritorious appeals from the
commissioner’s awards.” (See Smith, supra, 29 Cal.4th at p. 361 [discussing
section 98.2’s fee-shifting provision, under which parties who file a section 98.2
appeal and lose are obliged to pay the fees of the other parties].) A party who
appeals a Labor Commissioner award does so at its own peril. If the employer
appeals, and the employee obtains representation, it is likely that the employee’s
attorneys will uncover additional, related facts and claims not thoroughly
examined at the administrative level when the claimant was unrepresented. Just as
an employer is not bound by the defenses it raised in the Berman process, but
rather is entitled to abandon, change, or add defenses not brought before the Labor
Commissioner (see Jones v. Basich (1986) 176 Cal.App.3d 513, 518-519), so may
an employee raise additional wage-related claims in the de novo trial.
Accordingly, we hold that the Court of Appeal erred in construing section
98.2 to preclude the trial court from permitting Murphy to raise additional related
wage claims in the de novo trial. The trial court properly exercised its discretion.
30
DISPOSITION
We hold that section 226.7’s plain language, the administrative and
legislative history, and the compensatory purpose of the remedy compel the
conclusion that the “additional hour of pay” is a premium wage, not a penalty. We
further hold that the trial court properly exercised its discretion in deciding to
consider the additional, but related, wage claims during the de novo trial. The
contrary judgment of the Court of Appeal is reversed.
MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
31



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

Name of Opinion Murphy v. Kenneth Cole Productions, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 134 Cal.App.4th 728
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S140308
Date Filed: April 16, 2007
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Anne E. Bouliane
__________________________________________________________________________________

Attorneys for Appellant:

Seyfarth Shaw, Robert W. Tollen and George E. Preonas for Defendant and Appellant.

Cooley Godward Kronish, Michelle C. Doolin, Lori R. E. Ploeger, Leo P. Norton and Kelly A. Weber for
The Yankee Candle Company, Inc., as Amicus Curiae on behalf of Defendant and Appellant.

Steven B. Katz for Circuit City Stores, Inc., and Chevron U.S.A., Inc., as Amici Curiae on behalf of
Defendant and Appellant.

Sidley Austin and Jeffrey A. Berman for California Association of Health Facilities as Amicus Curiae on
behalf of Defendant and Appellant.

Law Offices of Steven Drapkin and Steven Drapkin for California Employment Law Council, Chamber of
Commerce of the United States of America, California Chamber of Commerce, California Restaurant
Association, Alliance of Motion Picture & Television Producers, Airline Industrial Relations Conference
and California Lodging Industry Association as Amici Curiae on behalf of Defendant and Appellant.

Sheppard Mullin Richter & Hampton, Richard J. Simmons and Geofrey D. DeBoskey for Employers
Group, California Retailers Association, National Retail Federation and California Hospital Association as
Amici Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Hastings Civil Justice Clinic, Donna M. Ryu, Nancy M. Stuart and Miye A. Goishi for Plaintiff and
Respondent.

Weinberg, Roger & Rosenfeld, David A. Rosenfeld, Theodore Franklin, Suzanne M. Murphy, Patricia M.
Gates, Anne I. Yen and Jessica Christensen for Alameda County Central Labor Council, California
Conference of Machinists, Contra Costa County Central Labor Council, National California Carpenters
Regional Council, SEIU United Healthcare Workers-West, South Bay Central Labor Council, California
Labor Federation, AFL-CIO, and International Association of Machinists and Aerospace Workers, District
Lodge 725, AFL-CIO, as Amici Curiae on behalf of Plaintiff and Respondent.

Page 2 – S140308 – counsel continued

Attorneys for Respondent:

Cohelan & Khoury and Michael D. Singer for California Employment Lawyers Association as Amicus
Curiae on behalf of Plaintiff and Respondent.

California Rural Legal Assistance, Inc., Cynthia L. Rice; Legal Aid Society-Employment Law Center,
Matthew Goldberg and Michael Gaitley for Maria Leticia Banda, Asian Law Caucus, Inc., Asian Pacific
American Legal Center of Southern California, Bet Tzedek Legal Services, Centro Legal de La Raza, East
Bay Community Law Center, Garment Worker Center, Golden Gate Women’s Employment Rights Clinic,
The Impact Fund, Katharine & George Alexander Community Law Center, Koreatown Immigrant Workers
Alliance, La Raza Centro Legal, Legal Aid Foundation of Los Angeles, Neighborhood Legal Services of
Los Angeles County, Stanford Community Law Clinic, Sweatshop Watch, Young Workers United and
Rocia Zetina as Amici Curiae on behalf of Plaintiff and Respondent.

Neyhart, Anderson, Flynn & Grosboll, John L. Anderson and Scott M. DeNardo for California Teamsters
Public Affairs Council and California Conference Board of the Amalgamated Transit Union as Amici
Curiae on behalf of Plaintiff and Respondent.

Roxborough, Pomerance & Nye, Michael B. Adreani and Marina N. Vitek for Jennifer Augustus as
Amicus Curiae on behalf of Plaintiff and Respondent.



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

Robert W. Tollen
Seyfarth Shaw
560 Mission Street, Suite 3100
San Francisco, CA 94105
(415) 397-2823

Steven Drapkin
Law Offices of Steven Drapkin
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA 90064-1683
(310) 914-7909

Donna M. Ryu
Hastings Civil Justice Clinic
100 McAllister Street, Suite 30
San Francisco, CA 94102
(415) 557-7887


Opinion Information
Date:Docket Number:
Mon, 04/16/2007S140308

Parties
1Murphy, John Paul (Plaintiff and Respondent)
Represented by Donna Miae Ryu
Hastings College of Law
100 McAllister Street, Suite 300
San Francisco, CA

2Kenneth Cole Productions, Inc. (Defendant and Appellant)
Represented by Robert W. Tollen
Seyfarth Shaw et al.
560 Mission Street, 31st Floor
San Francisco, CA

3Employers Group (Amicus curiae)
Represented by Richard J. Simmons
Sheppard Mullin et al.
333 S. Hope Street, 48th Floor
Los Angeles, CA

4California Retailers Association (Amicus curiae)
Represented by Richard J. Simmons
Sheppard Mullin et al.
333 S. Hope Street, 48th Floor
Los Angeles, CA

5National Retail Federation (Amicus curiae)
Represented by Richard J. Simmons
Sheppard Mullin et al.
333 S. Hope Street, 48th Floor
Los Angeles, CA

6California Hospital Association (Amicus curiae)
Represented by Richard J. Simmons
Sheppard Mullin et al.
333 S. Hope Street, 48th Floor
Los Angeles, CA

7California Employment Law Council (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

8Chamber Of Commerce Of The United State Of America (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

9California Restaurant Association (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

10Alliance Of Motion Picture & Television Producers (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

11Airline Industrial Relations Conference (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

12California Lodging Industry Association (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

13Augustus, Jennifer (Amicus curiae)
Represented by Marina N. Vitek
Wasserman Comden et al.
P.O. Box 7033
Tarzana, CA

14California Association Of Health Facilities (Amicus curiae)
Represented by Jeffrey Arn Berman
Sidley Austin Brown & Wood, LLP
555 W. Fifth Street, Suite 4000
Los Angeles, CA

15California Employment Lawyers Association (Amicus curiae)
Represented by Michael D. Singer
Cohelan & Khoury
605 "C" Street, Suite 200
San Diego, CA

16California Teamsters Public Affairs Council (Amicus curiae)
Represented by John L. Anderson
Neyhart Anderson et al.
44 Montgomery Street, Suite 2080
San Francisco, CA

17California Conference Board Of The Amalgamated Transit Union (Amicus curiae)
Represented by John L. Anderson
Neyhart Anderson et al.
44 Montgomery Street, Suite 2080
San Francisco, CA

18Asian Pacific American Legal Center Of Southern California (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

19Bet Tzedek Legal Services (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

20Centro Legal De La Raza (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

21East Bay Community Law Center (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

22Garment Worker Center (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

23Golden Gate Womens Employment Rights Clinic (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

24Impact Fund (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

25Katherine & George Alexander Community Law Center (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

26Koreantown Immigrant Workers Alliance (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

27La Raza Centro Legal (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

28Legal Aid Foundation Of Los Angeles (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

29Legal Aid Society - Employment Center (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

30Neighborhood Legal Services Of Los Angeles County (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

31Stanford Community Law Clinic (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

32Sweatshop Watch (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

33Young Workers United (Amicus curiae)
Represented by Matthew David Goldberg
Legal Aid Society-ELC
600 Harrison Street, Suite 120
San Francisco, CA

34Alameda County Central Labor Council (Amicus curiae)
Represented by Theodore Franklin
Van Bourg Weinberg et al.
180 Grand Avenue, Suite 1400
Oakland, CA

35California Conference Of Machinists (Amicus curiae)
Represented by Theodore Franklin
Van Bourg Weinberg et al.
180 Grand Avenue, Suite 1400
Oakland, CA

36Contra Costa County Central Labor Council (Amicus curiae)
Represented by Theodore Franklin
Van Bourg Weinberg et al.
180 Grand Avenue, Suite 1400
Oakland, CA

37Northern California Carpenters Regional Council (Amicus curiae)
Represented by Theodore Franklin
Van Bourg Weinberg et al.
180 Grand Avenue, Suite 1400
Oakland, CA

38Seiu United Healthcare Workers-West (Amicus curiae)
Represented by Theodore Franklin
Van Bourg Weinberg et al.
180 Grand Avenue, Suite 1400
Oakland, CA

39South Bay Central Labor Council (Amicus curiae)
Represented by Theodore Franklin
Van Bourg Weinberg et al.
180 Grand Avenue, Suite 1400
Oakland, CA


Disposition
Apr 16 2007Opinion: Reversed

Dockets
Jan 11 2006Petition for review filed
  respondent, John Paul Murphy by counsel, Donna M. Ryu.
Jan 11 2006Request for judicial notice received (pre-grant)
  respondent, John Paul Murphy by counsel, Donna M. Ryu.
Jan 11 2006Record requested
 
Jan 18 2006Received Court of Appeal record
  A107219-file jacket/briefs/loose papers/two accordian files
Jan 23 2006Received Court of Appeal record
  A108346-file jacket/loose pages/accordian file
Jan 31 2006Answer to petition for review filed
  Kenneth Cole Productions, Inc., appellant Robert W. Tollen, counsel
Feb 10 2006Reply to answer to petition filed
  John Paul Murphy, respondent by Donna M. Ryu, counsel
Feb 22 2006Petition for review granted (civil case)
  Request for judicial notice granted. Petition for Review GRANTED. The parties are directed to brief and argue the following issues: (1) Is a claim under Labor Code section (1) Is a claim under Labor Code section 226.7 for the required payment of "one additional hour of pay at the employee's regular rate of compensation" for each day that an employer fails to provide mandatory meal or rest periods to an employee governed by the three-year statute of limitations for a claim for compensation (Code Civ. Proc., section 338) or the one-year statute of limitations for a claim for payment of a penalty (Code Civ. Proc., section 340)? (2) When an employee obtains an award on such a wage claim in an administrative proceeding and the employee seeks de novo review in superior court, can the employee pursue additional wage claims not presented in the administrative proceeding? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Feb 23 2006Order filed
  The order filed on February 22, 2006, is hereby amended to read, in its entirety: "Request for judicial notice granted. Petition for review granted. The parties are directed to brief & argue the following issues: (1) Is a claim under Labor Code section 226.7 for the required payment of 'one additional hour of pay at the employee's regular rate of compensation' for each day that an employee fails to provide mandatory meal or rest periods to an employee governed by the three-year statute of limitations for a claim for compensation (Code Civ. Proc., section 338) or the one-year statute of limitations for a claim for payment of a penalty (Code Civ. Proc., section 340)? (2) When an employee obtains an award on such a wage claim in administrative proceedings and the employer seeks de novo review in superior court, can the employee pursue additional wage claims not presented in the administrative proceedings?"
Mar 3 2006Certification of interested entities or persons filed
  Donna M. Ryu, counsel for respondent
Mar 3 2006Request for extension of time filed
  John Paul Murphy, respondent Donna M. Ryu, counsel
Mar 8 2006Extension of time granted
  to April 24, 2006 to file respondent's opening brief.
Apr 10 2006Request for extension of time filed
  to May 24, 2006 to file respondent's opening brief.
Apr 19 2006Extension of time granted
  to May 24, 2006 to file respondent's opening brief.
May 8 2006Request for extension of time filed
  John Paul Murphy, respondent Donna M. Ryu, counsel
May 10 2006Extension of time granted
  to June 8, 2006 to file respondent's opening brief.
Jun 8 2006Opening brief on the merits filed
  John Paul Murphy, respondent by Donna M. Ryu, counsel
Jun 8 2006Request for judicial notice filed (granted case)
  John Paul Murphy, respondent Donna M. Ryu, counsel
Jun 30 2006Request for extension of time filed
  to August 22, 2006 to file appellants answering brief by Robert W. Tollen, counsel
Jul 6 2006Extension of time granted
  to August 22, 2006 to file appellants answering brief on the merits.
Aug 21 2006Answer brief on the merits filed
  Kenneth Cole Productions, Inc. appellant Robert W. Tollen, counsel
Aug 21 2006Request for judicial notice filed (granted case)
  Kenneth Cole Productions, Inc., appellant Robert W. Tollen, counsel
Aug 28 2006Request for extension of time filed
  to October 10, 2006 to file respondent's reply brief by Donna M. Ryu, counsel
Aug 31 2006Extension of time granted
  to October 10, 2006 for respondent to file the reply brief on the merits.
Oct 10 2006Received application to file Amicus Curiae Brief
  Employers Group, California retailers Association, National Retail Federation and California Hospital Association by Richard J. Simmons, counsel
Oct 10 2006Application to file over-length brief filed
  John Paul Murphy, respondent by Donna M. Ryu, counsel
Oct 10 2006Received:
  respondents oversize reply brief.
Oct 11 2006Reply brief filed (case fully briefed)
  John Paul Murphy, respondent by Donna M. Ryu, counsel
Oct 12 2006Permission to file amicus curiae brief granted
  Employers Group, California Retailers Association, National Retail Federation and California Hospital Association.
Oct 12 2006Amicus curiae brief filed
  Employers Group, California Retailers Association, National Retail Federation and California Hospital Associaiton, in support of defendant (Kenneth Cole Productions, Inc.), answer due within twenty days.
Oct 12 2006Request for judicial notice filed (granted case)
  Employers Group, California Retailers Association, National Retail Federation, California Hospital Association by Richard J. Simmons
Oct 19 2006Received application to file Amicus Curiae Brief
  of California Employement Law Council, The Chamber of Commerce of the United States of America, California Chamber of Commerce, California Restaurant Association, Alliance of Motion Picture & Television Producers, Airline INdustrial Relatioins Conference and California Lodging Industry Association in support of appellant (Kenneth Cole Productions, Inc.) by Steven Drapkin, counsel
Oct 20 2006Request for extension of time filed
  to December 19, 2006 to file joint application for permission to file consolidated briefs replying to Amicus Curiae Brief and application of time.
Oct 24 2006Extension of time granted
  to December 19, 2006 to file respondent (John Paul Murphy) and appellant (Kenneth Cole Productions, Inc.) consolidated briefs replying to amicus curiae briefs .
Oct 24 2006Permission to file amicus curiae brief granted
  California Employment Law council, Chamber of Commerce of the United States of Americak, California Chamber of Commerce, California Restaurant Association, Alliance of Motion Picture & Television Producers, Airline Industsrial Relations conference and the California Lodging Industry Association.
Oct 24 2006Amicus curiae brief filed
  California Employment Law Council, Chamber of Commerce of the United States of America, California Restaurant Association, Alliance of Motion Picture & Television Producers, Airline Industrial Relations Conference and the California Lodging Industry Association, in support of appellant. Answer due within twenty days of the filing of the brief.
Oct 24 2006Request for judicial notice filed (granted case)
  California Employment Law Council, Chamber of Commerce of the United States of America, California Chamber of Commerce, California Restaurant Association, Alliance of Motion Picture & Television Producers, Airline Industrial Relations conference and the California Lodging INdustry Association, by Steven Drapkin, counsel
Nov 9 2006Received application to file Amicus Curiae Brief
  of California Employment Lawyers Association, in support of respondent by Michael D. Singer.
Nov 9 2006Received application to file Amicus Curiae Brief
  of California Teamsters Public Affairs Council and California conference Board of the Amalgamated Transit Union, in support of respondent by John L. Anderson.
Nov 9 2006Received application to file Amicus Curiae Brief
  of Asian Pacific American Legal Center of Southern California, Bet Tzedek Legal Services, Centro Legal de la Raza, East Bay Community Law Center, Garment Worker Center, Golden Gate Women's Employment Rights Clinic, The Impact Fund, Katharine & George Alexander Community Law Center, Koreantown Immigrant Workers Alliance, La Raza Centro Legal, Legal Aid Foundation of Los Angeles, Legal Aid Society - Employment Law Center, Neighborhood Legal Services of Los Angeles County, Stanford Community Law Clinic, Sweatshop Watch, and Young Workers United, in support of respondent by Matthew Goldberg.
Nov 9 2006Received application to file Amicus Curiae Brief
  Jennifer Augustus, in support of respondent by Marina N. Vitek
Nov 9 2006Received application to file Amicus Curiae Brief
  California Association of Health Facilities, in support of apellants by Jeffrey A. Berman
Nov 13 2006Received application to file Amicus Curiae Brief
  Circuit City Stores, Inc. and Chevron U.S.A. Inc. Attorney Steven B. Katz
Nov 13 2006Received application to file Amicus Curiae Brief
  Alameda County Central Labor Council, California Conference of Machinists, Contra Costa County Central Labor Council, Northern California Carpenters Regional Council, SEIU United Healthcare Workers- West and South Bay Central Labor Council, in support of respondent by Theodore Franklin.
Nov 13 2006Received application to file Amicus Curiae Brief
  The Yankee Candle Company, Inc. in support of appellant by Michelle C. Doolin.
Nov 13 2006Permission to file amicus curiae brief granted
  Jennifer Augustus in support of respondent John Paul Murphy by Marina Vitek.
Nov 13 2006Amicus curiae brief filed
  Jennifer Augustus in support of respondent, answer due within twenty days.
Nov 17 2006Permission to file amicus curiae brief granted
  California Employment Lawyers Association
Nov 17 2006Amicus curiae brief filed
  California Employment Lawyers Association, in support of respondent. Answer due within twenty days.
Nov 17 2006Permission to file amicus curiae brief granted
  The Yankee Candle Company
Nov 17 2006Amicus curiae brief filed
  The Yankee Candle Company, in support of appellant. Answer due within twenty days.
Nov 17 2006Permission to file amicus curiae brief granted
  Alameda County Central Labor Council, California Conference of Machinists, Contra Costa County Central Labor Council, Northern California Carpenters Regional Council, SEIU United Healthcare Workers-West, South Bay Central Labor Council.
Nov 17 2006Amicus curiae brief filed
  Alameda County Central Labor Council, California Conference of Machinists, Contra Costa County Central Labor Council, Northern California Carpenters Regional Council, SEIU United Healthcare Worker West, South Bay Central Labor Council, in support of respondent. Answer due within twenty days.
Nov 17 2006Permission to file amicus curiae brief granted
  Circuit City Stores, Inc. and Chevron U.S.A., Inc.
Nov 17 2006Amicus curiae brief filed
  Circuit City Stores, Inc., and Chevron U.S.A. Inc., in support of appellant. Answer due within twenty days.
Nov 17 2006Permission to file amicus curiae brief granted
  California teamsters Public Affairs Council and California Conference Board of the Amalgamated Transit Union
Nov 17 2006Amicus curiae brief filed
  California teamsters Public Affairs Council and California Conference Board of the Amalgamated Transit Union, in support of respondent. Answer due within twenty days.
Nov 17 2006Permission to file amicus curiae brief granted
  Asian Pacific American Legal Center of Southern California, Bet Tzedek Legal Services, Centro Legal de La Raza, East Bay Community Law Center, Garment Worker Center, Golden Gate Women's Employment Rights Clinic The Impact Fund, Katharine & George Alexander Community Law Center, Koreatown Immigrant Workers Alliance, La Raza Centro Legal, Legal Aid Foundation of Los Angeles, Legal Aid Society - Employment Law Center, Neighborhood Legal Services of Los Angeles County, Stanford Community Law Clinic, Sweatshop Watch, Young Workers United l, in support of respondent. Answer due within twenty days.
Nov 17 2006Request for judicial notice filed (granted case)
  (The Yankee Candle Company)
Nov 22 2006Permission to file amicus curiae brief granted
  California Association of Health Facilities
Nov 22 2006Amicus curiae brief filed
  Californa Association of Health Facilities, in support of appellant. Answer due within twenty days.
Dec 19 2006Response to amicus curiae brief filed
  John Paul Murphy, respondent by Donna M. Ryu, counsel
Dec 19 2006Opposition filed
  John Paul Murphy, respondent by Donna M. Ryu, counsel
Dec 19 2006Filed:
  plaintiff/respondent John Paul Murphy's supplemental motion for judicial notice. by Donna M. Ryu, counsel for respondent .
Dec 19 2006Response to amicus curiae brief filed
  Kenneth Cole Productions, Inc., appellant by Robert W. Tollen, counsel
Jan 3 2007Opposition filed
  opposition to plaintiff/respondent's supplemental motion to take judicial notice. by Robert W. Tollen, counsel for appellant - Kenneth Cole Productions
Jan 3 2007Opposition filed
  opposition to plaintiff/respondent's application for permission to file oversize consolidated reply to amicus briefs; request to reject or to strike consolidated reply. by Robert Tollen, counsel for appellant - Kenneth Cole Productions.
Jan 3 2007Filed:
  response to plaintiff's objections to certain requests for judicial notice of amicus curiae california employment law council et al by Steven Drapkin attorney for Amicus Curiae.
Jan 4 2007Opposition filed
  plaintiff/respondent John Paul Murphy's response to Kenneth Cole Production's opposition to application for permission to file oversize consolidated reply to amicus curiae briefs; declaration of Donna M. Ryu. by Donna M. Ryu, counsel for respondent John Paul Murphy.
Jan 4 2007Opposition filed
  plaintiff/respondent John Paul Murphy's response to Kenneth Cole Production's opposition to supplemental motion for judicial notice. Donna M. Ryu, counsel for respondent John Paul Murph
Jan 24 2007Request for judicial notice granted
  Respondent's request for judicial notice, filed on June 8, 2006, is granted. Appellant's request for judicial notice, filed on August 21, 2006, is granted. Amici curiae Employers Group et al.'s request for judicial notice, filed on October 12, 2006, is granted. Amici curiae California Employment Law Council et al. filed a request for judicial notice on October 24, 2006. The request that we take judicial notice of Exhibits 2-4, 6-15, and 30-33 is granted. The request that we take judicial notice of Exhibits 1, 5, and 16-29 is denied. Amicus curiae Yankee Candle Company, Inc.'s request for judicial notice, filed on November 17, 2006, is granted. Amicus curiae California Employment Lawyers Association filed a request for judicial notice on November 17, 2006. The request that we take judicial notice of Exhibits 1-2 and 4-11 is granted. The request that we take judicial notice of Exhibit 3 is denied. Respondent's supplemental request for judicial notice, filed on December 19, 2006, is granted.
Jan 24 2007Received:
  letter dated January 22, 2007 from counsel Donna M. Ryu
Feb 8 2007Case ordered on calendar
  to be argued Wednesday, March 7, 2007, at 1:30 p.m., in San Francisco
Feb 20 2007Application filed to:
  divide oral argument time. Joint request by appellant Kenneth Cole Productions (asking 15 minutes) and amicus curiae California Employment Law Council (asking 15 minutes).
Feb 21 2007Order filed
  The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae California Employment Law Council 15 minutes of appellant's 30-minute allotted time for oral argument is granted.
Feb 27 2007Request for Extended Media coverage Filed
  by Microfirm Internet. by Michael Tracy, counsel
Mar 2 2007Request for extended media coverage denied
 
Mar 7 2007Cause argued and submitted
 
Apr 13 2007Notice of forthcoming opinion posted
 
Apr 16 2007Opinion filed: Judgment reversed
  We hold that section 226.7's plain language, the administrative and legislative history, and the compensatory purpose of the remedy compel the conclusion that the "additional hour of pay" is is a premium wage, not a penalty. We further hold that the trial court properly exercised its discretion in deciding to consider the additional,but related, wage claims during the de novo trial. Majority Opinion by Moreno, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ.
Apr 27 2007Request for modification of opinion filed
  California Employment Law Counsel, amicus curiae Steven Drapkin, counsel
May 2 2007Filed:
  opposition of Respondent, John Paul Murphy, to request for modification. by counsel, Nancy M.. Stuart.
May 9 2007Request for modification denied
 
May 18 2007Remittitur issued (civil case)
 
May 22 2007Received:
  Receipt for Remittitur from Court of Appeal, First Appellate District, Division One

Briefs
Jun 8 2006Opening brief on the merits filed
 
Aug 21 2006Answer brief on the merits filed
 
Oct 11 2006Reply brief filed (case fully briefed)
 
Oct 12 2006Amicus curiae brief filed
 
Oct 24 2006Amicus curiae brief filed
 
Nov 13 2006Amicus curiae brief filed
 
Nov 17 2006Amicus curiae brief filed
 
Nov 17 2006Amicus curiae brief filed
 
Nov 17 2006Amicus curiae brief filed
 
Nov 17 2006Amicus curiae brief filed
 
Nov 17 2006Amicus curiae brief filed
 
Nov 22 2006Amicus curiae brief filed
 
Dec 19 2006Response to amicus curiae brief filed
 
Dec 19 2006Response to amicus curiae brief filed
 
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