IN THE SUPREME COURT OF 

CALIFORNIA

DEV ANAND OMAN et al.,

Plaintiffs and Appellants,

v.

DELTA AIR LINES, INC.,

Defendant and Respondent.

S248726

Ninth Circuit

17-15124

Northern District of California

3:15-cv-00131-WHO

June 29, 2020

This opinion follows companion case S248702, 

also filed on June 29, 2020.

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, 

Cuéllar, and Groban concurred.

Justice Liu filed a concurring opinion, in which Justice Cuéllar 

concurred.
OMAN v. DELTA AIR LINES, INC.

S248726

Opinion of the Court by Kruger, J.

In this case, as in the companion cases Ward v. United 

Airlines, Inc., and Vidrio v. United Airlines, Inc. (June 29, 2020, 

S248702) ___ Cal.5th ___ (Ward), we confront a question about 

the application of various California wage and hour laws to 

flight attendants who work primarily outside California’s 

territorial jurisdiction. Consistent with our holding in those 

cases, we conclude that California’s wage statement laws apply 

only to flight attendants who have their base of work operations 

in California, and that the same is true of California laws 

governing the timing of wage payments. Finally, we hold that, 

whether or not California’s minimum wage laws apply to work

performed on the ground during the flight attendants’ brief and 

episodic stops in California, the pay scheme challenged here 

complies with the state requirement that employers pay their 

employees at least the minimum wage for all hours worked.

I.

Defendant Delta Air Lines, Inc., is a national and 

international air carrier incorporated in Delaware and based in 

Georgia. Delta offers service in and out of roughly one dozen 

California airports, connecting cities as small as Palm Springs 

and as large as Los Angeles to the rest of the country and the 

world.

Plaintiffs Dev Anand Oman, Todd Eichmann, Michael 

Lehr, and Albert Flores are or were flight attendants for Delta.
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

2

Oman lived in New York and had a New York airport as a home 

base. Lehr lives in Nevada but has a California airport as his 

home base. Eichmann and Flores both live in California and 

have California airports as their home bases. All four employees 

have served on flights in and out of California airports, as well 

as airports outside the state.

In 2015, the named plaintiffs (collectively Oman) filed a 

putative class action in federal court, alleging that Delta 

violates California labor law by failing to pay its flight 

attendants at least the minimum wage for all hours worked. 

According to the operative complaint, Delta’s published work 

rules (hereafter Work Rules) pay flight attendants pursuant to 

formulas that compensate them on an hourly basis for certain 

hours worked but fail to provide any compensation at all for 

other working hours, in contravention of an obligation under 

California statutory and regulatory law to pay no less than the 

minimum wage for every hour worked. (See Lab. Code, 

§§ 1182.12, 1194, 1194.2; Industrial Welfare Commission (IWC)

wage order No. 9–2001, § 4 (Wage Order No. 9).) Oman also 

alleged Delta fails to pay all wages in accordance with the 

semimonthly timeframe prescribed by Labor Code section 204 

(section 204) and to provide comprehensive wage statements 

reporting hours worked and applicable hourly pay rates, as

required by California’s wage statement statute, Labor Code 

section 226 (section 226). Oman sought relief under these 

statutes, as well as civil penalties under the Labor Code Private 

Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) and 

restitution and injunctive relief under the unfair competition 

law (Bus. & Prof. Code, § 17200 et seq.).

On cross-motions for summary judgment, the district 

court concluded Delta’s pay scheme does not violate California’s 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

3

minimum wage requirements. (Oman v. Delta Air Lines, Inc.

(N.D.Cal. 2015) 153 F.Supp.3d 1094, 1095.) Oman argued that 

Delta fails to pay any compensation at all for certain hours 

worked in California and, under Gonzalez v. Downtown LA 

Motors, LP (2013) 215 Cal.App.4th 36 (Gonzalez) and Armenta 

v. Osmose, Inc. (2005) 135 Cal.App.4th 314 (Armenta), Delta is 

prohibited from borrowing compensation due for other hours 

worked to make up for any shortfall. The district court 

examined the pay formulas set out by Delta’s Work Rules and 

concluded they adequately compensate flight attendants for all 

hours worked, without any impermissible borrowing or 

reduction in agreed-to contractual rates. (Oman, supra, 153 

F.Supp.3d at pp. 1102–1107.)

The parties then filed cross-motions for summary 

judgment on Oman’s remaining wage statement and timing 

claims. The district court granted judgment in favor of Delta, 

concluding that the relevant California statutes, sections 204 

and 226, do not apply to Oman. The court held that the 

jurisdictional reach of the statutes should be determined 

according to a multifactor analysis that examines “the 

particular Labor Code provision invoked, the nature of the work 

being performed, the amount of work being performed in 

California, and the residence of the plaintiff and the employer.” 

(Oman v. Delta Air Lines, Inc. (N.D.Cal. 2017) 230 F.Supp.3d 

986, 992–993.) Here, “[f]ocusing on the purpose of Section 226 

(to give employees clarity as to how their wages are calculated, 

so they can verify that their wages are calculated appropriately 

under California law), because the undisputed facts show that 

the named plaintiffs only worked a de minimis amount of time 

in California (ranging from 2.6% to a high of 14%), and in light 

of the nature of their work (necessarily working in federal 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

4

airspace as well as in multiple other jurisdictions but during 

each pay period and day at issue),” the court concluded that 

section 226 does not apply to Oman’s claims. (Oman, supra, 230 

F.Supp.3d at p. 993, fn. omitted.) Seeing no argument for a 

different result under section 204, and because plaintiffs’ 

counsel had conceded the statute should have a similar scope, 

the district court likewise rejected Oman’s section 204 claims.

(Oman, at p. 994.)

On appeal, the Ninth Circuit asked that we resolve three 

unsettled questions of California law underlying Oman’s claims. 

(Oman v. Delta Air Lines, Inc. (9th Cir. 2018) 889 F.3d 1075, 

1076–1077.) We accepted the request and agreed to resolve the 

following issues:1

(1) Do sections 204 and 226 apply to wage payments and 

wage statements provided by an out-of-state employer to an 

employee who, in the relevant pay period, works in California 

only episodically and for less than a day at a time?

(2) Does California minimum wage law apply to all 

work performed in California for an out-of-state employer by an 

employee who works in California only episodically and for less 

than a day at a time? (See Lab. Code, §§ 1182.12, 1194; Cal. 

Code Regs., tit. 8, § 11090, subd. (4).)

(3) Does the Armenta/Gonzalez bar on averaging wages 

(see Armenta, supra, 135 Cal.App.4th 314; Gonzalez, supra, 215 

Cal.App.4th 36) apply to a pay formula that generally awards 

credit for all hours on duty, but which, in certain situations 

 

1 We have reframed these inquiries slightly. (Cal. Rules of 

Court, rule 8.548(f)(5).)
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

5

resulting in higher pay, does not award credit for all hours on 

duty?

II.

A.

Our precedent makes clear that the application of 

California wage and hour protections to multistate workers like 

Oman may vary on a statute-by-statute basis. (See Sullivan v. 

Oracle Corp. (2011) 51 Cal.4th 1191, 1201 (Sullivan).) We thus 

consider separately each of the wage and hour statutes on which 

Oman relies, beginning with section 226. That provision 

requires an employer to supply each employee “semimonthly or 

at the time of each payment” a written wage statement 

disclosing the pay period and itemizing the hours worked, 

applicable hourly rates, gross and net wages earned, any 

deductions taken, and other relevant information. (§ 226, subd. 

(a).)

As we explained in Ward, supra, ___ Cal.5th ___, section 

226 does not, in so many words, define its geographic reach. 

(Ward, at p. ___ [p. 21].) But we ordinarily presume the 

Legislature drafts laws with domestic conditions in mind (id. at 

p. ___ [p. 16]), and thus requires some degree of connection 

between the subject matter of the statutory claim and the State 

of California. In Ward, we addressed the nature of the 

connection required to trigger the wage statement requirements 

set forth in section 226 and held that section 226 applies when 

an employee’s principal place of work is in California. 

Ordinarily, this test is met if an employee works primarily (i.e., 

the majority of the time) in California. In the case of interstate 

transportation workers and others who do not spend a majority 

of their working time in any one state, this test is satisfied when 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

6

California serves as their base of work operations. (Ward, at

pp. ___–___ [pp. 26–28].) Under this rule, because plaintiffs 

here never worked more than half the time in California (or in 

any other state), whether they are entitled to Californiacompliant wage statements hinges on whether they were based

for work purposes in California.

The Ninth Circuit’s question in this case appears to ask 

whether it is also relevant that Delta is a nonresident 

corporation. Delta now concedes that its foreign domicile does 

not foreclose the application of state law. We accept the 

concession. Section 226 contains no exemption based on the 

employer’s location. This is in contrast to, for example, the 

worker’s compensation scheme, which expressly exempts some 

out-of-state employers. (See Lab. Code, § 3600.5, subd. (b); 

Sullivan, supra, 51 Cal.4th at pp. 1197–1198.) The state’s 

power to protect employees within its borders is not limited by 

whether the worker might be a nonresident or might be 

employed by a nonresident entity. (North Alaska Salmon Co. v. 

Pillsbury (1916) 174 Cal. 1, 5; see Kearney v. Salomon Smith 

Barney, Inc. (2006) 39 Cal.4th 95, 105 [“individual states may 

adopt distinct policies to protect their own residents and 

generally may apply those policies to businesses that choose to 

conduct business within that state”].) Instead, the onus 

ordinarily is on “a company that conducts business in numerous 

states . . . to make itself aware of and comply with the law of a 

state in which it chooses to do business.” (Kearney, at p. 105.) 

To hold otherwise would, as Delta suggests, create an incentive 

for businesses employing individuals who work in California to 

avoid application of California law by locating their business 

operations outside the state. If employees are based for work 

purposes in California, that is sufficient to trigger the 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

7

requirements of section 226, regardless of where their employer 

resides.

The proposed class in this case includes individuals who, 

like New York-based Dev Oman, neither perform their work 

predominantly in California nor are based for work purposes in 

the state. Oman urges us to apply a different rule than the one 

we have articulated in Ward. Although the operative complaint 

does not so specify, Oman clarifies in his briefing that unlike the 

Ward plaintiffs he does not seek comprehensive wage 

statements documenting all wages earned during a pay period. 

He argues instead that section 226 ought to be interpreted to 

require California-compliant documentation for those hours, 

however few they might be during any given pay period, when 

he worked on the ground in California. He contends this 

requirement should apply to any airline employee who ever 

works in California, even those who are based out of state.

This argument fails under the terms of section 226. 

Section 226 provides for the documentation of wages and other 

information over an entire pay period, not fractions thereof. A 

wage statement must specify not only “total hours worked” and 

“all applicable hourly rates,” but also “gross wages,” “net wages,” 

and “all deductions” for the full period. (§ 226, subd. (a).) The 

statute contains no indication that the employer of an out-ofstate worker must report fractions of wages earned during brief 

trips to the state, as well as attempt to calculate the fraction of 

wage deductions attributable to these sojourns. The statute 

requires “an accurate itemized statement” reflecting “the 

inclusive dates of the period for which the employee is paid” and 

all relevant information concerning the employee’s pay during 

that period—that is, a single comprehensive statement of pay. 

(Ibid.)
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

8

Oman argues that our recent decision in Troester v. 

Starbucks Corp. (2018) 5 Cal.5th 829 supports his proposed 

fractional approach, but Troester has nothing to do with the 

question before us. There, stressing that the IWC’s wage orders 

ensure compensation for “ ‘all hours worked’ ” (Troester, at 

p. 840, quoting IWC wage order No. 5–2001, §§ 3(A), 4(A)), we 

rejected the contention that state wage law would not concern 

itself with unpaid work on the order of a few minutes a day. 

Instead, we held that an “employer that requires its employees 

to work minutes off the clock on a regular basis or as a regular 

feature of the job may not evade the obligation to compensate 

the employee for that time by invoking the de minimis doctrine.” 

(Troester, at p. 847.) That holding has no relevance here. The 

issue before us is not whether brief periods of work must be 

compensated—no one disputes the point—but whether a few 

minutes or hours of work in California necessarily trigger the 

detailed pay-period documentation requirements of California 

law. The answer to that question is no: Employees are entitled 

to California-compliant wage statements only if California is the 

principal place of their work.

Oman also argues that an approach based on the principal 

place of work will prove unworkable because coverage can only 

be determined in retrospect. But there is nothing unworkable 

about it. Wage statements are, of necessity, prepared in 

retrospect; their function is to record hours already worked and 

wages already earned. And if the location of an employee’s job 

duties shifts radically during the course of employment—if, for 

example, a flight attendant takes on a new job as a gate agent 

at Los Angeles International Airport—the employer will have 

ample opportunity to adjust. Likewise, if the employee’s base of 

operations changes because the employee is assigned to a 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

9

different home airport, it will be a small matter to determine 

whether section 226 now applies.

It is, in the end, Oman’s approach that poses greater 

practical concerns. By insisting on California-compliant wage 

statements, but only for the fraction of hours worked on the 

ground in California, Oman would effectively require that 

employers either (1) accompany each California-specific wage 

statement with multiple similar separate statements under the 

laws of each and every additional state in which an employee 

worked during a pay period, or (2) issue a single wage statement, 

but allow California law effectively to dictate the form and 

contents for documenting work predominantly performed in 

foreign jurisdictions. The first option would undermine the very 

purpose of section 226, which is “to ensure an employer 

‘document[s] the basis of the employee compensation payments’ 

to assist the employee in determining whether he or she has 

been compensated properly.” (Soto v. Motel 6 Operating, L.P.

(2016) 4 Cal.App.5th 385, 390, quoting Gattuso v. Harte-Hanks 

Shoppers, Inc. (2007) 42 Cal.4th 554, 574.) This informational 

purpose would be ill-served by a rule that led to employees 

receiving a blizzard of wage statements every pay period, each 

documenting only a state-specific sliver of their work, and from 

this paper snowdrift trying to discern what they had actually 

been paid. As to the second option, allowing any work in 

California, no matter how fleeting, to effectively impose 

California law on documentation of all work in a pay period 

would raise the very sorts of conflict-of-laws problems we 

generally presume the Legislature seeks to avoid. (Ward, supra, 

___ Cal.5th at pp. ___–___ [pp. 16–17].) It is presumably for this 

reason that Oman has avoided arguing that California law 

requires this result. We decline to construe section 226 as 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

10

putting employers to the choice of either issuing a single 

California-compliant wage statement for every interstate 

worker who works for any amount of time, however brief, within 

the state, or issuing a multiplicity of statements, when the 

statute envisions that employees will receive just one.

The principal place of work rule we have articulated in

Ward means that some short periods of work in California will

not be covered by section 226’s documentation requirements. 

Conversely, some periods of work outside California will be

covered, if they occur as part of an overall period in which most

work occurs inside this state or are performed by an employee

who primarily works in no state but is based here. Such

consequences are inevitable and unavoidable in a nation of 50

states where some forms of employment stretch across the land. 

But an understanding of section 226 that focuses on the

principal place of an employee’s work both serves the

informational purposes the Legislature sought to achieve and

minimizes the inevitable complications that would result from a

rule that any work in one state, no matter how fleeting, is

sufficient to trigger application of that state’s wage reporting

laws. 

We thus conclude section 226 does not apply to work 

performed in California during pay periods in which the

employee, based outside California, works primarily outside 

California. A non-California-based employee who works in 

California “only episodically and for less than a day at a time” 

(Oman v. Delta Air Lines, Inc., supra, 889 F.3d at p. 1077) is not 

entitled to a wage statement prepared according to the 

requirements of California law.
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

11

B.

We turn now to Oman’s section 204 claim. That statute

guarantees employees full payment on a semimonthly basis, 

providing: “All wages,” with certain exceptions not relevant 

here, “earned by any person in any employment are due and 

payable twice during each calendar month, on days designated 

in advance by the employer as the regular paydays.” (§ 204, 

subd. (a).) Section 204 goes on to establish specific deadlines by 

which wage payments must be made. (Id., subd. (a).)

2

 As is true 

of section 226, nothing in the statute explicitly specifies its 

intended geographic scope.

As Oman conceded in the federal district court (see Oman 

v. Delta Air Lines, Inc., supra, 230 F.Supp.3d at p. 994), there is 

no reason to interpret section 204’s geographic coverage 

differently from that of section 226. That is because section 204 

works hand in hand with section 226. Section 226 regulates the 

information an employer must provide in connection with wage 

payments, while section 204 regulates when an employer must 

pay an employee for hours worked. The Legislature has 

recognized that when an employee must be paid (the subject of 

§ 204), and what information must accompany each such 

required payment (the subject of § 226) are necessarily linked. 

(See § 204, subd. (b)(2) [coordinating the application of these 

provisions].)

 

2 With certain exceptions not relevant here, “[l]abor

performed between the 1st and 15th days, inclusive, of any

calendar month shall be paid for between the 16th and the 26th

day of the month during which the labor was performed, and

labor performed between the 16th and the last day, inclusive, of

any calendar month, shall be paid for between the 1st and 10th

day of the following month.” (§ 204, subd. (a).)
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

12

As with section 226, Oman seeks to apply section 204 only 

to those hours he worked within California. And as with section 

226, reading the statute as Oman argues would pose difficulties 

that prove fatal to the argument. Again, there are two options: 

Either the employer must calculate and split out some portion 

of the wages due as attributable to work performed in California 

and pay only those on section 204’s schedule, while paying other 

wages due in accord with whatever timing statutes might apply 

under other states’ laws, or the employer must pay all wages due 

according to the schedule required under California law by 

section 204. These interpretations present the same issues as 

the corresponding options for complying with section 226.

The first interpretation, aside from the administrative 

headaches it would generate, runs headlong into the text of 

section 204, which applies to “[a]ll wages . . . earned,” with 

exceptions not significant here. (§ 204, subd. (a), italics added.) 

As with section 226, nothing in the text suggests the Legislature 

contemplated fragmenting wages earned according to the state 

in which labor was performed and requiring whatever sliver of 

wages might be attributable to California to be paid on section 

204’s timeline, with other slivers for work elsewhere paid 

according to whatever other state law might apply. Nor is it 

clear how such a reading would advance the policy underlying 

section 204. Section 204 serves the “public policy in favor of full 

and prompt payment of an employee’s earned wages,” which “is 

fundamental and well established: ‘ “Delay of payment or loss 

of wages results in deprivation of the necessities of life, suffering 

inability to meet just obligations to others, and, in many cases 

may make the wage-earner a charge upon the public.” ’ ” (Smith 

v. Superior Court (2006) 39 Cal.4th 77, 82, quoting Kerr’s 

Catering Service v. Department of Industrial Relations (1962) 57 
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Opinion of the Court by Kruger, J.

13

Cal.2d 319, 326; see Voris v. Lampert (2019) 7 Cal.5th 1141, 

1148 [“prompt and complete wage payments are of critical 

importance to the well-being of workers, their families, and the 

public at large”].) Section 204, insofar as it applies to the 

entirety of an employee’s wages, directly serves this policy. It is 

less apparent how the policy is meaningfully advanced by 

requiring payment of California-earned wages on a Californiaspecified timeline when those wages represent just a small 

fraction of the earnings an employee relies on for support.

The second interpretation accords section 204 a broad 

reach, allowing California law to dictate the timing of payment 

for wages earned predominantly outside California for work 

performed outside California. Granting section 204 such an 

expansive scope would generate significant complications. 

Given the nature of the flight attendants’ work, treating any 

work performed on the ground in any given state as sufficient to 

trigger application of payment timing requirements could 

subject the payment for work in a given pay period to the oftenconflicting laws of a dozen or more states. Reading section 204 

in concert with section 226 as applying to pay periods in which 

an employee works predominantly in California avoids these 

problems.

In sum, we conclude section 204 is subject to the same 

limits as section 226 and applies only to pay periods during

which an employee predominantly works inside California.

III.

We turn, finally, to the minimum wage claims. The Ninth 

Circuit asks two questions related to these claims: First, 

whether California minimum wage law applies to the hours (or 

fractions thereof) that Oman worked on the ground in 
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Opinion of the Court by Kruger, J.

14

California, and second, whether Delta’s method of computing

Oman’s wages complies with the state law. As discussed, the 

application of labor protections must be analyzed on a provision 

by provision basis in light of the nature of the protection 

afforded, and so the rules we articulate for sections 204 and 226 

do not resolve whether the state’s minimum wage laws might 

apply. (See Ward, supra, ___ Cal.5th at pp. ___, ___ & fn. 10

[pp. 21, 28 & fn. 10]; Sullivan, supra, 51 Cal.4th at p. 1201; ante, 

at p. ___ [p. 5].) But we need not settle the reach of the state’s 

minimum wage laws if we can determine that, even were those 

laws to apply, Delta’s pay scheme would not violate them. 

Because the record establishes Delta complies with state 

minimum wage law, we address only that question.

Like other industry wage orders, Wage Order No. 9 

requires that “[e]very employer shall pay to each employee, on 

the established payday for the period involved, not less than the 

applicable minimum wage for all hours worked in the payroll 

period, whether the remuneration is measured by time, piece, 

commission, or otherwise.” (Id., § 4(B).) Here, pursuant to the 

Work Rules, the remuneration provided to Delta flight 

attendants is measured by the “rotation,” a given sequence of 

flights over a day or a period of days that the attendant will 

serve on. Compensation for each rotation is calculated 

according to four different formulas; flight attendants are paid 

according to whichever formula yields the largest amount for the 

complete rotation. (See post, at pp. 22–23.) It is undisputed that 

under this compensation scheme, flight attendants are always 

paid, on an hourly average, above the minimum wage. Oman 

contends that the scheme nonetheless violates California’s 

minimum wage law, principally because one of Delta’s four 

formulas—the formula that most often determines how much 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

15

flight attendants will be paid, because it generally yields the 

greatest compensation—is based solely on flight time and does 

not factor in the hours flight attendants spend working on the 

ground before and after flights.

The dispute between the parties does not concern the 

substance of California’s minimum wage guarantee. It is 

common ground that the law guarantees at least minimum wage 

for “all hours worked in the payroll period.” (Wage Order No. 9, 

§ 4(B).) The parties’ disagreement instead concerns how 

compliance is to be measured when the employer does not 

compensate its employees according to a fixed hourly rate

applicable to all hours. 

A.

To understand the nature of the dispute, some background 

is required. Beginning several decades ago, federal courts 

confronting questions about minimum wage compliance 

commonly interpreted federal law to require only that 

employers pay in each week an average wage at or above the 

federal minimum. (See 29 U.S.C. § 206(a); U.S. v. Klinghoffer 

Bros. Realty Corp. (2d Cir. 1960) 285 F.2d 487, 490; see also, e.g., 

Dove v. Coupe (D.C. Cir. 1985) 759 F.2d 167, 171–172 (opn. of 

Ginsburg, J.).) At least without further refinement, the 

workweek-average approach means that if an employer agrees 

to pay a particular amount for say, 20 hours of work in a week, 

but then demands the employee work an additional 10 hours for 

free, the minimum wage law is satisfied so long as the total 

wages, divided by 30, equal or exceed the applicable minimum 

wage. Under this approach, Delta’s compensation scheme could 

create no possible problems, since, as noted, it is undisputed 
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Opinion of the Court by Kruger, J.

16

that the scheme yields an average hourly wage that well exceeds 

the minimum set by California law.

The Division of Labor Standards Enforcement (DLSE) and 

the unanimous Courts of Appeal, however, have embraced a 

more stringent understanding of state law that forbids taking 

compensation contractually due for one set of hours and 

spreading it over other, otherwise un- or undercompensated, 

hours to satisfy the minimum wage—a practice that has often, 

perhaps misleadingly, been referred to as “wage averaging.” As 

we will explain, the practice these authorities prohibit might be 

more accurately characterized as “wage borrowing,” and we 

employ that phraseology here.

The DLSE was first to consider the issue. (See Dept. of 

Industrial Relations, DLSE Opn. Letter No. 2002.01.29 (Jan. 29, 

2002) (hereafter DLSE Opinion Letter No. 2002.01.29).) In 

response to a question by parties to a collective bargaining 

agreement, the DLSE determined that particular employee 

travel time for which no compensation was being paid, because 

the employer apparently viewed it as off-duty and 

noncompensable, was in fact on-duty hours worked and 

compensable. (Id. at pp. 1–7.) The DLSE then considered 

whether payments for other compensable hours, contractually 

promised under the collective bargaining agreement, could be 

borrowed to satisfy the employer’s minimum wage obligations, 

as would have been true under the rule generally articulated in 

the federal courts.

The DLSE viewed the language of the wage order as 

ambiguous, so it turned to the statutory backdrop for answers. 

California law, the DLSE observed, differs from federal law in 

that it not only guarantees a minimum wage but also expressly 
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Opinion of the Court by Kruger, J.

17

protects employees’ right to receive the wages promised in a 

contract or collective bargaining agreement. Specifically, Labor 

Code section 221 prohibits an employer from paying wages and 

then recouping some portion of the wages as a kickback or secret 

deduction;

3 Labor Code section 222 prohibits underpayment of

wages established by a collective bargaining agreement;

4 and

Labor Code section 223 prohibits underpayment of wages

otherwise established by contract.

5

 Wage borrowing would 

violate these statutes by reducing compensation, for the hours 

from which wages were borrowed, below the contractually 

agreed-upon level. (DLSE Opn. Letter No. 2002.01.29, supra, at 

p. 11 [“These statutes prevent [an] employer that might be 

covered by a [collective bargaining agreement (CBA)] or other 

contract that expressly pays employees less than the minimum 

wage for certain activities that constitute ‘hours worked’ within 

the meaning of state law, from using any part of the wage 

payments that are required under that CBA or other contract 

for activities that are compensated in an amount that equals or 

exceeds the minimum wage, as a credit for satisfying minimum 

 

3

“It shall be unlawful for any employer to collect or receive

from an employee any part of wages theretofore paid by said

employer to said employee.” (Lab. Code, § 221; see Kerr’s

Catering Service v. Department of Industrial Relations, supra,

57 Cal.2d at p. 328.)

4

“It shall be unlawful, in case of any wage agreement

arrived at through collective bargaining, either wilfully or

unlawfully or with intent to defraud an employee, a competitor,

or any other person, to withhold from said employee any part of

the wage agreed upon.” (Lab. Code, § 222.)

5

“Where any statute or contract requires an employer to

maintain the designated wage scale, it shall be unlawful to

secretly pay a lower wage while purporting to pay the wage

designated by statute or by contract.” (Lab. Code, § 223.)
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

18

wage obligations for those activities that are compensated at 

less than the minimum wage under the CBA or contract” (fn. 

omitted)].) In practical terms, this means that an employer who 

contracts to pay $18 per hour for two hours of work, but who 

then demands a third hour of unpaid work, cannot argue that it 

has complied with a $12 hourly minimum wage (see, e.g., Lab. 

Code, § 1182.12, subd. (b)(1)(C), (2)(C)) because it has paid $36

over three hours, or $12 per hour. Under the DLSE’s 

interpretation of the Labor Code, the employer must pay the full 

$18 required by contract for the first two hours. Then, for the 

third uncontracted-for hour for which no compensation was 

promised, it must pay no less than the applicable minimum 

wage.

The Court of Appeal in Armenta, supra, 135 Cal.App.4th 

314, endorsed the DLSE’s reasoning in a similar context. The 

employer in Armenta, which maintained utility poles, had 

promised in a collective bargaining agreement to pay set hourly 

rates for hours spent engaged in “productive” tasks directly 

related to pole maintenance. But employees were required to 

engage in other, “nonproductive” activities, such as travel time 

and paperwork, for which they received no compensation. (Id.

at p. 317.) The court held this unlawful, notwithstanding the 

fact that the average of the paid and unpaid hours exceeded the 

minimum wage. The court reasoned that an employer who 

promises to compensate particular hours worked at a particular 

rate cannot borrow some of that compensation and apply it to 

other compensable hours for which no compensation is provided. 

To do so would effectively compel an employee to sacrifice 

contractually promised compensation and breach the employer’s 

contractual commitments, in violation of either Labor Code 

section 222 (governing collective bargaining agreements) or 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

19

Labor Code section 223 (governing ordinary contracts). (See 

Armenta, at p. 323 [averaging pay across any uncompensated 

hours “contravenes these code sections and effectively reduces 

[the employee’s] contractual hourly rate”].)

Since Armenta, other Courts of Appeal have uniformly 

followed its lead. These decisions have extended the noborrowing rule to employees under a collective bargaining 

agreement (Bluford v. Safeway Inc. (2013) 216 Cal.App.4th 864, 

872–873 (Bluford)) and an ordinary contract (Gonzalez, supra, 

215 Cal.App.4th at pp. 50–51), and without regard to whether 

the basis for compensation is hourly (Sheppard v. North Orange 

County Regional Occupational Program (2010) 191 Cal.App.4th 

289, 297–298, fn. 5), by piece rate (Bluford, at p. 872; Gonzalez, 

at pp. 51–52), or by commission (Vaquero v. Stoneledge 

Furniture, LLC (2017) 9 Cal.App.5th 98, 108–114 (Vaquero)). 

Although we have not previously had occasion to address the 

issue, we agree with this consensus: State law prohibits 

borrowing compensation contractually owed for one set of hours 

or tasks to rectify compensation below the minimum wage for a 

second set of hours or tasks, regardless of whether the average 

of paid and unpaid (or underpaid) time exceeds the minimum 

wage. Even if that practice nominally might be thought to 

satisfy the requirement to pay at least minimum wage for each 

hour worked, it does so only at the expense of reneging on the 

employer’s contractual commitments, in violation of the contract 

protection provisions of the Labor Code.

Synthesizing the authorities, we summarize the principles 

this way. The compensation owed employees is a matter 

determined primarily by contract. Compensation may be 

calculated on a variety of bases: Although nonexempt employee 

pay is often by the hour, state law expressly authorizes 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

20

employers to calculate compensation by the task or piece, by the 

sale, or by any other convenient standard. (See Lab. Code, 

§ 200, subd. (a) [compensation may be “fixed or ascertained by

the standard of time, task, piece, commission basis, or other

method of calculation”]; Wage Order No. 9, § 4(B) [compensation 

may be “measured by time, piece, commission, or otherwise”].) 

In many employment agreements, such as the one at issue in 

Armenta, the unit of time or activity by which an employer 

promises to pay an employee is easily ascertainable. (See 

Armenta, supra, 135 Cal.App.4th at p. 317 [“Under the terms of 

the parties’ collective bargaining agreement, respondents were 

paid hourly wages . . . .”].) In other cases, the employer may 

compensate employees based on a combination of methods. 

(See, e.g., Vaquero, supra, 9 Cal.App.5th at p. 103 

[compensation determined by the greater of sales commission or 

hourly minimum pay]; Gonzalez, supra, 215 Cal.App.4th at p. 41 

[compensation determined by greater of repair tasks completed 

or minimum hourly pay].) Consistent with general contract 

interpretation principles, the unit for which pay is promised 

should be determined based on the “mutual intention of the 

parties as it existed at the time of contracting.” (Civ. Code, 

§ 1636.)

Whatever the task or period promised as a basis for 

compensation, however, an employer must pay no less than the 

minimum wage for all hours worked. (See Wage Order No. 9, 

§§ 2(H), 4.) The employer must satisfy this obligation while still

keeping any promises it has made to provide particular amounts 

of compensation for particular tasks or periods of work. (Lab. 

Code, §§ 221–223.) For all hours worked, employees are entitled 

to the greater of the (1) amount guaranteed by contract for the 

specified task or period, or (2) the amount guaranteed by the 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

21

minimum wage. Whether a particular compensation scheme 

complies with these obligations may be thought of as involving 

two separate inquiries. First, for each task or period covered by 

the contract, is the employee paid at or above the minimum 

wage? Second, are there other tasks or periods not covered by 

the contract, but within the definition of hours worked, for 

which at least the minimum wage should have been paid? 

For purposes of evaluating whether an employee has 

received at least the hourly minimum wage for tasks or periods 

compensated under the contract, it is generally permissible to 

translate the contractual compensation—whether it be done by 

task, work period, or other reasonable basis—into an hourly rate 

by averaging pay across those tasks or periods. An employer 

can, for example, pay by the day, with daily pay averaged across 

all hours worked to determine whether the resulting hourly 

wage exceeds the minimum. But an employer who instead 

promises to pay by the hour may not compensate any given hour 

at less than minimum wage. Nor may the employer make up for 

the shortfall by pointing to other hours for which contractual 

compensation exceeds the minimum wage. As the DLSE 

explained in its letter, if a contract or bargaining agreement 

expressly guarantees compensation for one set of tasks or one 

specific period, that compensation may not be reduced to 

supplement pay for other tasks or periods within the purview of 

the contract or bargaining agreement, but otherwise

undercompensated by them. (DLSE Opn. Letter 

No. 2002.01.29, supra, at p. 11; Lab. Code, §§ 221–223.) 

The same “no borrowing” principle applies when an 

employer requires work not covered by the contract at all, but 

which falls within the definition of hours worked under the 

minimum wage law. So, for example, in Armenta, supra, 135 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

22

Cal.App.4th 314, the collective bargaining agreement ensured 

pay at or above the minimum wage for hours engaged in 

specified productive tasks, and under the agreement and Labor 

Code section 222, the employees were entitled to their promised 

wages without diminution. But for other periods not 

compensated under the contract, but during which employees 

were on duty and thus owed compensation under the wage 

order, the minimum wage was also due.

B.

So far, we have described common ground: Delta does not 

challenge the no-borrowing principle as it has been elaborated 

in the Armenta line of cases. The parties’ disagreement concerns 

whether Delta’s flight attendant compensation scheme violates

this no-borrowing principle. Because the relevant provisions of 

the Labor Code prohibit borrowing only when it results in 

failure to maintain the wage scale designated by contract, the

resolution necessarily turns on the nature of Delta’s contractual 

commitments. (See Lab. Code, § 223 [prohibiting an employer 

from “secretly pay[ing] a lower wage while purporting to pay the

wage designated . . . by contract”].)

Delta’s Work Rules, which are disclosed to all its flight 

attendants, promise to compensate attendants by the rotation 

rather than by particular hours worked. This is evident both 

from the structure of the compensation scheme outlined in the 

Work Rules and the procedures Delta employees follow to obtain

work assignments.

Each rotation contains one or more duty periods, 

interspersed with layovers between duty periods. A duty period 

begins when a flight attendant reports to an airport before a 

flight. Thereafter, the flight attendant may have preboarding
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

23

obligations, in-flight obligations, posttouchdown obligations, 

transit or sit time—the period in another airport before the next 

flight is ready for boarding—and a similar set of obligations 

during the next or each subsequent flight until the end of the 

duty period. As Delta acknowledges, flight attendants are on 

duty continuously during a duty period, from first reporting 

until release after the last flight of the period. For his part, 

Oman does not contend flight attendants are on duty or entitled 

to compensation for layovers between duty periods. 

Under the Work Rules, compensation is first determined 

for each duty period within a rotation by comparing three 

calculations and choosing the highest pay from among these: 

“Each duty period of a rotation pays the greatest of: [¶] 1) flight 

time (includes deadhead flight time, minutes under, and flight 

pay for ground time), or [¶] 2) 4:45 minimum duty period credit 

(MDC), or [¶] 3) 1 for 2 duty period credit (DPC).” Second, the 

maximum pay for all duty periods within a rotation is summed

and compared against a fourth formula based on the length of 

the rotation, and flight attendants are paid whichever of these 

two amounts is greater.6 Thus, although hours worked, or 

credited, are elements in these successive computations and 

comparisons to determine an employee’s pay, Delta does not 

promise to pay by the hour, nor does it promise to pay for certain 

hours and not others.

 

6 Under this alternative rotation formula, “[t]he sum of the 

duty period credits listed above is then compared to 1 for 3.5 trip 

credit (TRP), which guarantees at least 1 hour pay for every 3.5 

hours away from base. You will be paid the greater of the two 

values.”
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

24

The promise to pay by rotation is also reflected in the 

procedures Delta uses for distributing work assignments. The 

nature of these procedures is undisputed: Each month, Delta 

circulates a bid packet to its flight attendants listing rotations 

each employee can request. The bid packet presents the number 

of duty periods and length of each duty period within each 

rotation; report times and total scheduled flight times for the 

flights within each rotation; and the amount of time the flight 

attendant can expect to be away from base. The bid packet also 

shows which formula will apply and the minimum amount flight 

attendants would be paid for the rotation at their particular 

contractually established “flight pay” rate. (See Oman v. Delta 

Air Lines, Inc., supra, 153 F.Supp.3d at pp. 1096–1098.) Flight 

attendants then submit their rotation preferences, with the 

understanding that their pay for each rotation will be no less 

than the amount derivable from the bid packet. That Delta pays 

flight attendants by the rotation, and what it will pay for any 

particular rotation, are fully disclosed. Delta then gives flight 

attendants access to electronic databases that track credits and 

pay earned for each assigned rotation.

Delta’s four-formula method for calculating compensation 

guarantees that flight attendants are always paid above the 

minimum wage for the hours worked during each rotation 

without borrowing from compensation promised for other 

rotations. Under one of the four formulas—the one-for-two duty 

period credit formula—pay is calculated by multiplying the 

attendant’s established flight pay rate by the total hours in the 

duty period, divided by two. To borrow the simple example 

contained in Delta’s 2014 Work Rules, a flight attendant 

working a duty period that lasts 12.5 hours would receive 6.25 

hours of credit at the flight pay rate—a rate that in 2014 ranged 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

25

from $23.28 to $53.52 depending on the employee’s years of 

service. So long as the flight pay rate equals or exceeds twice 

the applicable minimum wage, this formula ensures a flight 

attendant is paid for all hours worked in every duty period at no 

less than the minimum wage. And because pay for a rotation is 

never less than the sum of the pay for each duty period, rotation 

pay also will always meet or exceed the hourly minimum wage.

Oman does not contend that any flight attendant’s flight 

pay rate was ever less than twice the applicable minimum wage. 

But he nevertheless contends that the duty period credit 

formula fails to compensate flight attendants for all hours 

worked and instead compensates them for only half the hours 

worked—leaving the other half entirely uncompensated, 

contrary to state minimum wage law. Specifically, as Oman 

reads the Work Rules, the flight attendant working a 12.5-hour 

duty period is being paid for only half of that time, 6.25 hours, 

with the remaining 6.25 hours unpaid.

Oman’s reading is unsound. The Work Rules do not, as he 

suggests, purport to compensate flight attendants only for every 

other hour—which is to say, they do not require a flight 

attendant to work an hour for free in order to earn full flight pay 

credit for working a second hour. Instead, flight pay credit 

accumulates continuously as the duration of the duty period 

lengthens: Every additional minute on duty earns an employee 

an additional 30 seconds of flight pay credit. As an example, a 

flight attendant subject to a $40 flight pay rate who works an 

eight-hour duty period would receive $160; for an 8.5-hour duty 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

26

period, $170; for a nine-hour duty period, $180; and so on.

7

 Each 

and every increment of on-duty time is compensated under the 

formula, and at a rate equal to or greater than the hourly 

minimum wage. There is no impermissible borrowing from 

hours for which full flight pay was promised to cover hours for 

which no compensation is provided, both because every hour is

compensated at the same rate (half flight pay) and because 

Delta never promised full flight pay for any particular hour 

under this formula.

The duty period credit formula is, however, only one of 

four formulas that may determine flight attendant 

compensation; if any one of the other formulas yields a greater 

amount of compensation, it will instead control. Oman argues 

that when pay is based on one of these other formulas, Delta 

violates the state minimum wage law.

Oman focuses in particular on a second formula, the flight 

time formula, which supplies the measure of pay for most duty 

periods. (Oman v. Delta Air Lines, Inc., supra, 153 F.Supp.3d at 

pp. 1100–1101.) Under this formula, an attendant is paid at the 

contractually established flight pay rate for each period between 

flight “block out” and “block in”—the period between when each 

flight departs the block, or gate, and arrives at the destination 

gate. The established flight pay rate is multiplied by the longer 

of the scheduled flight time or the actual flight time. Time 

 

7 The same is true no matter what causes the duty period to 

extend. If the same flight attendant with a $40 flight pay rate 

works a duty period consisting of flights in and out of San 

Francisco, and the second flight is delayed by fog, requiring

additional sit time in San Francisco, the amount owed under the 

duty period credit formula will still rise, at the rate of $20 per 

hour, for every extra minute of delay.
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

27

between reporting for duty and the first flight block out, during 

any between-flights sit time, and after the last flight block in 

until release, is not directly factored into the calculation. For 

duty periods where the flight time comprises less than 50 

percent of the total on-duty time, a flight attendant can still be 

compensated according to the duty period credit formula

described above; the flight time formula operates only to supply 

additional compensation, above and beyond the compensation 

that would be owed under the duty period credit formula, for 

periods where flight time exceeds this 50 percent threshold.

As Oman observes, there are on-duty periods to which the 

flight time formula does not directly attribute compensation, 

such as preflight briefings. Oman contends that Delta’s failure 

to specify a particular pay rate specific to these periods of time 

violates the obligation to pay at least minimum wage for all 

hours worked. And, according to Oman, any attempt to satisfy 

the minimum wage law by averaging the flight attendant’s pay 

over the entire span of the duty period would violate the noborrowing rule of Armenta and its progeny.

Oman’s argument depends on a particular view of the role 

of the flight time formula under the parties’ contract: That, by 

offering flight attendants a fixed amount of compensation for a 

particular rotation, but also disclosing the formula on which it 

has arrived at that amount, Delta has in effect promised to 

compensate flight attendants at their full flight pay rate for 

hours in flight, and not to compensate them at all for their other 

hours worked. But even if this were a plausible view of the flight 

time formula in isolation, it is not a plausible view of the formula 

as it operates in the broader context of the Work Rules. Under 

those rules, the flight time formula is just one of four 

components of a single compensation scheme that constitutes 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

28

Delta’s contractual promise to its flight attendants. Flight 

attendants are presented with information about the entire 

scheme and bid on their work assignments according to the 

entire scheme. And the scheme, taken as a whole, does not 

promise any particular compensation for any particular hour of 

work; instead, as discussed above, it offers a guaranteed level of 

compensation for each duty period and each rotation. Because 

there are no on-duty hours for which Delta contractually 

guarantees certain pay—but from which compensation must be 

borrowed to cover other un- or undercompensated on-duty 

hours—the concerns presented by the compensation scheme in 

Armenta, supra, 135 Cal.App.4th 314 and like cases are absent 

here.

The same logic applies when either of Delta’s remaining 

two formulas is used to calculate flight attendant compensation. 

In all cases, flight attendants are guaranteed at least the 

amount of compensation owed under the duty period credit 

formula, which, as already discussed, always exceeds the 

minimum wage. To forbid Delta from offering greater pay than 

the amount owed under that formula based on the flight time 

formula or one of the other two formulas would do nothing to 

ensure workers are paid fair or adequate wages for all hours 

worked. (See Barrentine v. Arkansas-Best Freight System (1981) 

450 U.S. 728, 739 [minimum wage laws serve to ensure “ ‘ “[a]

fair day’s pay for a fair day’s work” ’ ”]; Brooklyn Bank v. O’Neil

(1945) 324 U.S. 697, 706 [minimum wage protections serve “to 

protect certain groups of the population from sub-standard 

wages . . . due to . . . unequal bargaining power”].) There is no 

evident inadequacy or unfairness in permitting Delta to 

compensate flight crew members on a per-rotation basis, at a 

level no less than contractually promised and in excess of the 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

29

hourly minimum wage—nor is there any unfairness in 

permitting Delta to increase that compensation when, for 

example, duty periods include a greater percentage of flight time 

or rotations include more drawn-out off-duty layovers between 

duty periods.

Resisting this commonsense conclusion, Oman leans 

heavily on Gonzalez, supra, 215 Cal.App.4th 36, but Gonzalez

will not support the weight. There, the employer auto 

dealership and service center compensated auto technicians on 

a piece-rate basis. Each repair task was assigned a set number 

of “flag hours” roughly corresponding to the length of time it 

ought to take to complete. The service center promised its 

technicians a flat rate tied to their experience level multiplied 

by the number of flag hours completed. Technicians also had 

significant wait time, during which no repair orders were 

pending and so no flag hours could be accrued, but during which 

the employer required them to remain on premises in case new 

customers arrived. The employer also calculated a “ ‘minimum 

wage floor,’ ” which equaled the total hours a technician 

remained on the premises multiplied by the applicable 

minimum wage. (Id. at p. 41.) If a technician’s “flag hour” 

compensation fell below the minimum wage floor, the employer 

supplemented the technician’s pay to make up for the difference. 

(Id. at pp. 41–42.) Employees sued for minimum wage 

violations based on the failure to pay for wait time.

The Court of Appeal concluded that the employer’s 

compensation scheme violated California minimum wage law. 

It explained that the Armenta no-borrowing rule “applies 

whenever an employer and employee have agreed that certain 

work will be compensated at a rate that exceeds the minimum 

wage and other worktime will be compensated at a lower rate.” 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

30

(Gonzalez, supra, 215 Cal.App.4th at p. 51.) In such 

circumstances, pay at an agreed higher rate cannot be borrowed 

to make up for sub-minimum wage pay during other worktime. 

As the Gonzalez court read the parties’ contract, the case before 

it involved such a situation: The employer’s contractual 

commitment to its workers was a guaranteed piece-rate for 

completing various repair tasks. Having promised a particular 

amount of compensation for each flag hour, the employer could 

not borrow from that promised compensation to supply at least 

a minimum hourly wage for unpaid wait time hours without 

violating Labor Code section 223 and the Armenta no-borrowing 

rule. The court illustrated with the hypothetical case of a 

worker promised $20 per flag hour who completed repair tasks 

assigned four flag hours but was then obligated to spend an 

additional four hours on site, during which no new orders came 

in. In the Gonzalez court’s view, paying the employee only $80 

for this shift would either (1) violate the minimum wage, 

because the four hours of wait time were uncompensated, or 

(2) require the employee to forfeit half of his or her promised $20 

per flag hour to cover the unpaid wait time, in violation of 

section 223. (Gonzalez, at p. 50.) In other words, the additional 

wait time constituted periods not covered by the employer’s 

commitment to piece-rate pay, but within the definition of hours 

worked, for which at least the minimum wage should have been 

paid.

This case is different from Gonzalez in critical respects. In 

Gonzalez, the court understood the contract at issue to promise 

pay at a certain rate for certain tasks completed. The minimum 

wage floor, which “supplement[ed]” employee pay only when 

“necessary,” did not alter the nature of that promise. (Gonzalez, 

supra, 215 Cal.App.4th at p. 40.) We do not address here, and 
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

31

express no opinion concerning, a scenario in which a minimum 

wage floor was written into a contract that otherwise promised 

pay by the piece.8 Because the employer in Gonzalez required 

technicians to remain at work while waiting for customers—

time not accounted for by the piece-rate system—the Court of 

Appeal concluded the employer violated the no-borrowing rule 

by attempting to use piece-rate pay as a credit against its 

obligations to pay for wait time. By contrast, as we have 

explained, Delta’s Work Rules reflect a promise to pay by the 

rotation, and for each rotation, the compensation Delta promises 

will, no matter which of the four formulas applies, always exceed 

the state minimum wage per hour worked. Thus, Delta satisfies 

state minimum wage law without ever needing to compromise 

its contractual commitments.

The minimum wage laws exist to ensure that workers 

receive adequate and fair pay, not to dictate to employers and 

employees what pay formulas they may, or may not, agree to 

adopt as a means to that end. (See Madison Ave. Corp. v. Asselta

 

8 Since Gonzalez, this particular scenario has been 

addressed by the Legislature, which endorsed Gonzalez’s 

overarching principles and codified for piece-rate workers a 

statutory right to separate pay, at no less than the minimum 

wage, for otherwise uncompensated nonproductive and rest 

time. (Lab. Code, § 226.2, subd. (a), added by Stats. 2015, 

ch. 754, § 4; see Sen. Rules Com., Off. of Sen. Floor Analyses, 3d 

reading analysis of Assem. Bill No. 1513 (2015–2016 Reg. Sess.)

as amended Sept. 9, 2015, pp. 2 [bill “[c]odifies the Gonzalez and 

Bluford decisions that nonproductive time, rest breaks, and 

recovery breaks are separately compensated”], 3 [bill “[c]odifies 

that, for nonproductive time, the rate of compensation is not less 

than the minimum wage”].)
OMAN v. DELTA AIR LINES, INC.

Opinion of the Court by Kruger, J.

32

(1947) 331 U.S. 199, 203–204.) Delta’s arrangement may be

relatively unusual, but it is not unlawful.

IV.

We answer the Ninth Circuit’s questions as follows:

(1) Labor Code sections 204 and 226 do not apply to pay 

periods in which an employee works only episodically and for 

less than a day at a time in California unless the employee 

works primarily in this state during the pay period, or does not 

work primarily in any state but has his or her base of operations 

in California.

(2) State law limits on wage borrowing permit 

compensation schemes that promise to compensate all hours 

worked at a level at or above the minimum wage, even if 

particular components of those schemes fail to attribute to each 

and every compensable hour a specific amount equal to or 

greater than the minimum wage.

(3) In light of the answer to the question about the 

substantive application of the state’s minimum wage laws, we 

do not address the separate question concerning the geographic 

scope of that law’s application.

 KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.
OMAN v. DELTA AIR LINES, INC.

S248726

Concurring Opinion by Justice Liu

Today’s opinion endorses the rule against wage borrowing 

established in Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 

314 (Armenta) and reaffirmed in subsequent decisions. (Maj. 

opn., ante, at p. 19.) The court holds that an employer may not 

satisfy its obligation to pay at least the minimum wage for all 

hours worked by “borrowing compensation contractually owed 

for one set of hours or tasks to rectify compensation below the 

minimum wage for a second set of hours or tasks.” (Ibid.) Delta 

Air Lines, Inc.’s (Delta) flight attendant compensation scheme 

does not violate this “no-borrowing” rule. (Id. at pp. 22–31.)

While agreeing with today’s opinion, I write to highlight 

the first step in applying the no-borrowing rule: identifying the 

nature of the employer’s contractual commitment to its 

employees. Because the rule requires employers to keep their 

contractual commitments in the course of fulfilling their 

minimum wage obligations, whether the rule is violated turns 

on what an employer’s contractual commitments are. Courts 

should be careful not to allow employers to characterize their 

contractual commitments in ways that would effectively 

circumvent the no-borrowing rule.

Although Armenta established the no-borrowing rule in 

the context of a “minimum wage” claim, it is important to clarify 

that the rule’s purpose is not to ensure that employees are paid, 

on average, hourly wages at or above a minimum threshold. In 
OMAN v. DELTA AIR LINES, INC.

Liu, J., concurring

2

no-borrowing cases, there is no dispute that the employees are 

paid at least the minimum wage when total compensation is 

averaged over all hours worked. The question is whether the 

employer is using contractually promised pay for certain tasks 

or hours worked to make up for failing to pay the minimum wage 

for other tasks or hours worked. As today’s opinion explains, the 

purpose of the no-borrowing rule is to prevent employers from 

using clever accounting to effectively “reneg[e] on the employer’s 

contractual commitments, in violation of the contract protection 

provisions of the Labor Code.” (Maj. opn., ante, at p. 19.) 

Plaintiff flight attendants do not claim that their average pay 

ever fell below the minimum wage. Rather, they claim that the 

pay structure Delta promised did not compensate them for all 

the hours they worked.

Whether Delta or any other employer violates the noborrowing rule thus turns on the nature of the pay structure the 

employer has promised. “The compensation owed employees is 

a matter determined primarily by contract.” (Maj. opn., ante, at 

p. 19.) Employers may legally compensate their employees on 

any number of bases, including “by the standard of time, task,

piece, commission basis, or other method of calculation.” (Lab. 

Code, § 200, subd. (a); see Industrial Welfare Commission, wage 

order No. 9-2001, § 4(B) [compensation may be “measured by 

time, piece, commission, or otherwise”].) The unit of pay is often 

straightforward. In Armenta, the plaintiff employees “were paid 

hourly wages ranging between $9.08 to $20, depending on 

whether they were crew members or foremen.” (Armenta, supra, 

135 Cal.App.4th at p. 317.) In other cases, the compensation 

scheme may be more complex. Employers may use a 

combination of methods (e.g., Bluford v. Safeway Inc. (2013) 216 

Cal.App.4th 864, 867 [truck drivers’ compensation based on a 
OMAN v. DELTA AIR LINES, INC.

Liu, J., concurring

3

combination of miles driven and hours worked]) or alternative 

pay formulas that are triggered when certain conditions are met 

(e.g., Vaquero v. Stoneledge Furniture, LLC (2017) 9 Cal.App.5th 

98, 103 (Vaquero) [compensation determined by the greater of 

sales commission or hourly minimum pay]; Gonzalez v. 

Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 41

(Gonzalez) [compensation determined by the greater of repair 

tasks completed or hourly minimum pay]).

Consistent with general contract interpretation 

principles, the employer’s contractual commitment, including 

the unit of promised pay, is based on the objectively reasonable 

expectations of the parties at the time of contract. (See Civ. 

Code, § 1636 [“A contract must be so interpreted as to give effect 

to the mutual intention of the parties as it existed at the time of 

contracting, so far as the same is ascertainable and lawful.”].) 

Such principles include interpreting the employment agreement 

as a whole (id., § 1641) and, if the contract language is 

ambiguous, looking to the context surrounding its formation 

(id., § 1647) as well as the subsequent conduct of the parties (1 

Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 772).

Correctly identifying an employer’s contractual 

commitment is critical to ensuring that employers do not 

circumvent the no-borrowing rule simply by inserting into 

employment agreements a minimum wage floor — i.e., an 

agreement to make up the difference if an employee’s promised 

pay, averaged over all hours worked, falls below the applicable 

minimum wage. A minimum wage floor, by incorporating the 

concept of borrowing into the contract, would seem to be an easy 

way for an employer to inoculate itself against a no-borrowing 

claim.
OMAN v. DELTA AIR LINES, INC.

Liu, J., concurring

4

Courts applying Armenta have rejected such 

compensation schemes. In Vaquero, a furniture store paid its 

salespeople on a commission basis and did not separately 

compensate them for legally mandated rest breaks. (Vaquero, 

supra, 9 Cal.App.5th at p. 103.) The employer also calculated

employee pay based on the total number of hours an employee 

worked, including rest breaks. If a salesperson failed to earn 

more than an average of $12.01 per hour on commission, the 

employer made up the difference and subtracted that amount 

from the salesperson’s earnings in the next pay period. (Ibid.) 

Construing the compensation scheme to promise payment by 

commission, the Court of Appeal concluded that the scheme 

failed to separately pay employees for rest breaks and therefore 

failed to pay for all hours worked. (Ibid.) The no-borrowing rule 

barred the employer from using pay promised for an employee’s 

commission to fulfill its obligation to pay for rest breaks. (Id. at 

pp. 114–117.) The fact that the employer supplemented an 

employee’s commission if it fell below a specified hourly floor did 

not cure the violation. (Ibid.)

Likewise, in Gonzalez, an automobile servicing company

paid its mechanics for each repair they completed but did not 

compensate them for wait time between repairs. (Gonzalez, 

supra, 215 Cal.App.4th at p. 41.) The employer also calculated 

what it called a “ ‘minimum wage floor’ ” (ibid.): If a mechanic’s 

compensation for repairs fell below what the mechanic would 

have made if paid the minimum wage for all hours worked, 

including wait time, the employer made up the difference. (Id.

at pp. 41–42.) Despite such a minimum wage floor, the Court of 

Appeal affirmed the trial court’s finding that the employer failed 

to pay for all hours worked. (Id. at p. 55.) The court found that 

the compensation system was a “piece-rate system” because the 
OMAN v. DELTA AIR LINES, INC.

Liu, J., concurring

5

“technicians [were] paid primarily on the basis of repair tasks 

completed.” (Id. at p. 41.) It concluded that the no-borrowing 

rule developed in Armenta also applied to piece-rate 

compensation schemes. (Id. at p. 49.) Because the employer’s 

piece-rate scheme did not separately compensate mechanics for 

wait time between repairs, the employer did not pay employees 

for all hours worked. Under the no-borrowing rule, the employer 

could not use pay promised for repair tasks to cover its 

obligations to pay for wait time. (Id. at p. 50; see also 

Balasanyan v. Nordstrom, Inc. (S.D.Cal. 2012) 913 F.Supp.2d 

1001 [finding a violation of California wage law under Armenta 

where a department store paid salespeople on a commission 

basis and supplemented commissions if it fell below an average 

hourly minimum].)

Although Vaquero and Gonzalez did not extensively 

discuss the nature of each employer’s respective contractual 

commitments, the reasoning of those decisions recognizes that 

employers cannot circumvent their obligation to pay employees 

for all hours worked or to pay the full amount of commissions, 

piece rates, or other compensation promised to employees 

simply by inserting a minimum wage floor into an employment 

agreement. A contrary conclusion would make it all too easy to 

evade the rule; a minimum wage floor would become a standard 

term in many employment contracts, and the rule would be 

emptied of real substance. The rule developed in Armenta is 

grounded in the protections of the Labor Code that prohibit an 

employer from diluting an employee’s contractually promised 

wages. (Armenta, supra, 135 Cal.App.4th at p. 323 [discussing 

Lab. Code, §§ 221, 222, 223].) Vaquero and Gonzalez held that 

the employers in those cases made contractual commitments to 

commission and piece-rate pay, respectively, and the addition of 
OMAN v. DELTA AIR LINES, INC.

Liu, J., concurring

6

a minimum wage floor did not change those commitments. (Cf. 

Cardenas v. McLane FoodServices, Inc. (C.D.Cal. 2011) 796 

F.Supp.2d 1246, 1252 [finding a violation of California wage law 

under Armenta even though the employer did not violate an 

“explicit agreement”].) Today’s opinion leaves those decisions, 

and the protective force of the no-borrowing rule, intact.

LIU, J.

I Concur: 

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

Name of Opinion Oman v. Delta Airlines, Inc.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding XXX on request pursuant to rule 8.548, Cal. Rules of Court

Review Granted 

Rehearing Granted

__________________________________________________________________________________

Opinion No. S248726

Date Filed: June 29, 2020

__________________________________________________________________________________

Court: 

County: 

Judge: 

__________________________________________________________________________________

Counsel:

Nichols Kaster, Matthew C. Helland, Daniel S. Brome; Altshuler Berzon, Michael Rubin and Barbara J. 

Chisholm for Plaintiffs and Appellants.

Carol Vigne, Katherine Fiester; Cynthia L. Rice; Olivier Schrieiber & Chao, Monique Olivier; Anna 

Kirsch; and Nayantara Mehta for California Employment Lawyers Association, California Rural Legal 

Assistance Foundation, Legal Aid at Work, National Employment Law Project and Women’s Employment 

Rights Clinic as Amici Curiae on behalf of Plaintiffs and Appellants.

Mastagni Holstedt, David E. Mastagni and Isaac S. Stevens for Dan Goldthorpe, James Donovan, Chris 

Bennett, James Isherwood and David Vincent as Amici Curiae on behalf of Plaintiffs and Appellants.

Duckworth Peters Lebowitz Olivier, Monique Olivier and J. Erik Heath for California Employment 

Lawyers Association as Amicus Curiae on behalf of Plaintiffs and Appellants.

Morgan, Lewis & Bockius, Thomas M. Peterson, Robert Jon Hendricks and Andrew P. Frederick for 

Defendant and Respondent.

Ogletree, Deakins, Nash, Smoak & Stewart, Robert R. Roginson and Christopher W. Decker for Employers 

Group and California Employment Law Council as Amici Curiae on behalf of Defendant and Respondent.

Mayer Brown, Donald M. Falk, John P. Zaimes and Ruth Zadikany for Cathay Pacific Airways Limited as 

Amicus Curiae on behalf of Defendant and Respondent.

Greines, Martin, Stein & Richland, Robert A. Olson and Cynthia E. Tobisman for California New Car 

Dealers Association as Amicus Curiae on behalf of Defendant and Respondent.

Jones Day, Douglas W. Hall, Shay Dvoretzky and Vivek Suri for Airlines for America as Amicus Curiae 

on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Matthew C. Helland

Nichols Kaster, LLP

235 Montgomery St., Suite 810

San Francisco, CA 94104

(415) 277-7235

Robert Jon Hendricks

Morgan, Lewis & Bockius LLP

One Market Street, Spear Tower

San Francisco, CA 94105

(415) 442-1000