Filed 5/30/18

CERTIFIED FOR PARTIAL PUBLICATION**

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

FABIO CANALES et al.,

Plaintiffs and Appellants,

v.

WELLS FARGO BANK, N.A.,

Defendant and Respondent.

 B276127

 (Los Angeles County

 Super. Ct. No.

 BC502826)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, John Shepard Wiley, Jr., Judge. Affirmed.

Law Offices of Sherry Jung and Larry W. Lee; Hyun Legal, 

Dennis S. Hyun for Plaintiffs and Appellants.

Kading Briggs, Glenn L. Briggs, Theresa A. Kading and 

Nisha Verma, for Defendant and Respondent.

____________________________________________________________

** Pursuant to California rules of Court, rules 8.1100 and 8.1110, 

this opinion is certified for publication with the exception of parts 

III(B) and III(C).
2

I. INTRODUCTION

Plaintiffs Fabio Canales and Andy Cortes, on behalf of 

themselves and class members, appeal from a summary 

judgment. Plaintiffs were former or current non-exempt 

employees of defendant Wells Fargo Bank, N.A. Plaintiffs 

alleged that their wage statements failed to include information 

required under Labor Code1 section 226, subdivision (a)(9). 

Specifically, plaintiffs argued that a line on the wage statement, 

“OverTimePay-Override,” should, but did not, include hourly 

rates and hours worked. Plaintiffs also alleged defendant 

violated section 226 by failing to provide a wage statement 

concurrently with the terminated employees’ final wages paid instore. Plaintiffs moved for summary adjudication on the section 

226 cause of action. 

Defendant in its summary judgment motion argued that 

OverTimePay-Override reflected additional overtime pay that 

was owed for work performed on a previous pay period, but could 

not be calculated because it was based on a nondiscretionary 

bonus not yet earned. Under subdivision (a)(9), defendant 

contended OverTimePay-Override did not have corresponding 

hourly rates or hours worked for the current pay period. As to 

plaintiffs’ second theory, defendant asserted it complied with the 

statute by furnishing the wage statement by mail. The trial 

court found in favor of defendant and against plaintiffs. 

 

1 Further statutory references are to the Labor Code unless 

otherwise indicated.
3

Plaintiffs contend the trial court erred by denying their 

summary adjudication motion and by granting defendant’s 

motion. We affirm.

II. BACKGROUND

A. Factual Background2

Plaintiffs are current or former non-exempt California 

employees of defendant. Defendant would in some instances 

issue a paycheck and wage statement that contained 

nondiscretionary incentive compensation3 (the bonus) to 

employees who worked during the period covered by the incentive 

compensation. These bonus periods would be monthly, quarterly, 

or annually. For employees who worked overtime during those 

bonus periods, the wage statements contained a line item called 

“OverTimePay-Override,” formerly called “OT-Flat.” 

OverTimePay-Override listed incremental additional overtime 

paid to the employee for overtime hours worked during the bonus

 

2 All facts are considered undisputed for purposes of 

summary judgment.

3 Teresa Swanson, defendant’s person most knowledgeable, 

stated that a nondiscretionary bonus was “given to a team 

member, based on some sort of preset work definition, goal, 

something that they have to meet. And then they earn that 

bonus.” It appears this bonus was a production or piecework 

bonus.
4

period under the “Earnings” column.4 For the OverTimePayOverride line on the wage statements, no hourly rates or hours

worked was identified. 

In certain situations, defendant issued final wages to 

employees at the time of their termination through “in-store 

payments” made by cashier’s check. Defendant’s payroll 

department would then create the wage statement either the 

same day or the next day and mail it to the terminated employee 

by United States mail.5 During their employment, employees

had online access to their itemized wage statements. Employees 

lost such online access the day after termination. 

 

4 To calculate the amount to be entered on the OverTimePayOverride line: (1) take the bonus earned during the bonus period, 

whether it be by year, quarter, or month; (2) divide the bonus by 

the total number of hours worked during the bonus period; (3) 

multiply the resulting number by 0.5; (4) multiply the resulting 

number by the total number of overtime hours worked during the 

bonus period.

Our Supreme Court in a recent decision concerning flat 

sum bonuses under California law decided that the proper 

method for calculating the rate of overtime pay when an 

employee receives both an hourly wage and a flat sum bonus is to 

divide the bonus by the number of nonovertime hours actually 

worked during the bonus period. (Alvarado v. Dart Container 

Corp. of California (2018) 4 Cal.5th 542, 562 (Alvarado).) The 

Supreme Court specifically excluded production or piecework 

bonuses or a commission from its holding. (Id. at p. 561, fn. 6.) 

5 Plaintiffs asserted in their opening brief, without citation to 

the record, that they never received their wage statements. We 

will disregard such assertions as meritless. (Susag v. City of 

Lake Forest (2002) 94 Cal.App.4th 1401, 1416.)
5

B. First Amended Complaint

Plaintiffs filed their first amended complaint, the operative 

pleading, on June 20, 2013. Plaintiffs sued on behalf of 

themselves and a class composed of (1) current or former nonexempt California employees of defendant who received 

OverTimePay-Override from March 13, 2012 to present and 

(2) all former California employees of defendant who were 

terminated from March 13, 2012 to present and were paid their 

final wages through the “in-store payment” procedure. In their 

first cause of action, plaintiffs alleged defendant violated section 

2266 by failing to identify the hourly rates and the hours worked 

 

6 At the time of the alleged offenses, section 226, subdivision 

(a)(9) provided in pertinent part: “(a) Every employer shall, 

semimonthly or at the time of each payment of wages, furnish 

each of his or her employees, either as a detachable part of the 

check, draft, or voucher paying the employee’s wages, or 

separately when wages are paid by personal check or cash, an 

accurate itemized statement in writing showing . . . (9) all 

applicable hourly rates in effect during the pay period and the 

corresponding number of hours worked at each hourly rate by the 

employee . . . .” (Stats. 2012, ch. 844, § 1.7.) Subdivision (a)(9)

was added by the Legislature in 2000. (Stats. 2000, ch. 876, § 6.)

Section 226, subdivision (a) was amended by the 

Legislature in 2016 to read in pertinent part: “An employer, 

semimonthly or at the time of each payment of wages, shall 

furnish to his or her employee, either as a detachable part of the 

check, draft, or voucher paying the employee’s wages, or 

separately if wages are paid by personal check or cash, an 

accurate itemized statement in writing . . . .” (Stats. 2016, ch. 77, 

§ 1, eff. Jan 1, 2017.) Subdivision (a)(2) was also amended, and 

subdivision (j) was added. (Ibid.) The 2016 amendment does not 

substantively affect our opinion.
6

that corresponded to OverTimePay-Override. Plaintiffs also 

alleged defendant violated section 226 by failing to provide 

terminated employees with wage statements immediately upon 

termination. Plaintiffs alleged a second cause of action pursuant 

to the Private Attorneys General Act (§ 2698 et seq.) (PAGA) for 

violation of section 226.7 

C. Summary Adjudication/Judgment Motions

On December 15, 2015, plaintiffs moved for summary 

adjudication.8 Much like the allegations in their amended 

complaint, plaintiffs argued that defendant violated section 226, 

subdivision (a)(9) by failing to specify the hourly rates and 

number of hours worked for the OverTimePay-Override 

adjustment on the itemized wage statements. Plaintiffs also 

argued defendant violated section 226 by failing to provide to 

terminated employees an itemized wage statement concurrently

with their final wages that were paid in-store by cashier’s check. 

Defendant filed its own summary judgment motion on 

December 15, 2015. Defendant asserted it did not violate section 

226, subdivision (a)(9) because OverTimePay-Override 

represented an increase in overtime pay, based on a periodic 

 

7 A third plaintiff, Luciano Gonzales, was initially part of 

this action. However, Gonzales was not named as a class 

representative in plaintiffs’ motion for class certification and is 

not an appellant. The class was certified on March 20, 2015. 

8 Though plaintiffs categorized their motion as one for 

summary judgment or in the alternative, summary adjudication, 

plaintiffs sought only summary adjudication as to their first 

cause of action for violation of section 226. 
7

bonus, for overtime hours worked in previous pay periods. 

Defendant argued there were no “applicable hourly rates in 

effect during the pay period” that corresponded to 

OverTimePay-Override and thus defendant did not have to 

provide such information on the wage statement. As to plaintiffs’ 

second theory, defendant contended it furnished the itemized 

statement as required under section 226 by mailing it to the 

terminated employee’s last known address either the same day or 

the next day. Finally, defendant argued plaintiffs’ PAGA cause of 

action failed because it was wholly derivative of a violation based 

on section 226 and because plaintiffs failed to exhaust 

administrative remedies. Plaintiffs do not dispute their PAGA 

cause of action is derivative of the section 226 claims.

On May 26, 2016, the trial court issued its order granting 

defendant’s motion and denying that of plaintiffs. As to 

defendant’s first argument, the trial court agreed that section 

226, subdivision (a)(9) did not apply to OverTimePay-Override 

because there was no applicable hourly rate for the pay period 

reflected in the wage statement. For defendant’s second 

argument, the trial court found that defendant complied with the 

“furnish” requirement under section 226 by mailing the wage 

statement. 

III. DISCUSSION

A. Standard of Review

“[F]rom commencement to conclusion, the party moving for 

summary judgment bears the burden of persuasion that there is 

no triable issue of material fact and that he is entitled to 
8

judgment as a matter of law. That is because of the general 

principle that a party who seeks a court’s action in his favor 

bears the burden of persuasion thereon. [Citation.] There is a 

triable issue of material fact if, and only if, the evidence would 

allow a reasonable trier of fact to find the underlying fact in favor 

of the party opposing the motion in accordance with the 

applicable standard of proof. . . . [¶] [T]he party moving for 

summary judgment bears an initial burden of production to make 

a prima facie showing of the nonexistence of any triable issue of 

material fact; if he carries his burden of production, he causes a 

shift, and the opposing party is then subjected to a burden of 

production of his own to make a prima facie showing of the 

existence of a triable issue of material fact. . . . A prima facie 

showing is one that is sufficient to support the position of the 

party in question. [Fns. omitted.]” (Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 850-851.)

We review an order granting summary judgment de novo. 

(Coral Construction, Inc. v. City and County of San Francisco

(2010) 50 Cal.4th 315, 336.) The trial court’s stated reasons for 

granting summary judgment are not binding because we review 

its ruling not its rationale. (Ibid.) In addition, a summary 

judgment motion is directed to the issues framed by the 

pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 

1238, 1252.) These are the only issues a motion for summary 

judgment must address. (Conroy v. Regents of University of 

California (2009) 45 Cal.4th 1244, 1250.)

This appeal solely involves statutory interpretation. “The 

proper interpretation of a statute, and its application to 

undisputed facts, presents a question of law that is . . . subject to 

de novo review.” (Morgan v. United Retail Inc. (2010) 186 
9

Cal.App.4th 1136, 1142 (Morgan).) “‘As in any case involving 

statutory interpretation, our fundamental task here is to 

determine the Legislature’s intent so as to effectuate the law’s 

purpose.’ [Citation.] The well-established rules for performing 

this task require us to begin by examining the statutory 

language, giving it a plain and commonsense meaning.

[Citation.] We do not, however, consider the statutory language 

in isolation; rather, we look to the statute’s entire substance in 

order to determine its scope and purposes. [Citation.] That is, 

we construe the words in question in context, keeping in mind the 

statute’s nature and obvious purposes. [Citation.] We must 

harmonize the statute’s various parts by considering it in the 

context of the statutory framework as a whole. [Citation.] If the 

statutory language is unambiguous, then its plain meaning 

controls. If, however, the language supports more than one 

reasonable construction, then we may look to extrinsic aids, 

including the ostensible objects to be achieved and the legislative 

history.” (Los Angeles County Metropolitan Transportation 

Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 

1100, 1106-1107; Morgan, supra, 186 Cal.App.4th at pp. 1142-

1143.)

B. Nondiscretionary Bonuses and Overtime Pay

We first discuss the nature of nondiscretionary bonuses and 

how they relate to overtime pay under the Labor Code. Pursuant 

to section 510, subdivision (a), an employer must pay one and a 

half times an employee’s “regular rate of pay” if he or she works 

more than 40 hours per week or more than 8 hours per day. 

Nondiscretionary bonuses are considered part of the “regular rate
10

of pay.” (Marin v. Costco Wholesale Corp. (2008) 169 Cal.App.4th 

804, 807 (Marin); see 29 C.F.R. § 778.209 (2012) [federal method 

of explaining regular rate of pay calculation for bonuses].)

In order to calculate overtime pay for an employee paid at 

an hourly rate, an employer must allocate the bonus over the 

period in which it was earned. (Marin, supra, 169 Cal.App.4th at 

p. 807; Chin et al., Cal. Practice Guide: Employment Litigation 

(The Rutter Group 2017) ¶ 11:906 [“A bonus or prize paid in cash 

is allocated over the period during which it was earned to 

determine the increase in the average hourly rate for each week 

of the period”].) To explain this using an example, take a 

hypothetical employee wage statement for the period of 

January 7 to January 20, 2018.9 This hypothetical wage 

statement would include an hourly regular rate, the number of 

regular hours worked during the pay period of January 7 to 

January 20, the hourly overtime rate, and the number of 

overtime hours worked during the pay period of January 7 to 

January 20. The hypothetical employee earned a $360 monthly 

bonus for work performed during the previous month of 

December, from December 1 to December 31, 2017. This bonus 

would be reflected on the January 7 to January 20, 2018 wage 

statement.10 To calculate the OverTimePay-Override line, the 

 

9 We have provided these dates, but defendant used the 

hours and bonus figures in their respondent’s brief as an 

illustration to calculate OverTimePay-Override. Plaintiffs have 

not disputed the accuracy of defendant’s method.

10 Section 204, subdivision (b)(1) provides, “all wages earned 

for labor in excess of the normal work period shall be paid no 

later than the payday for the next regular payroll period.” 
11

hours worked in December 2017 would be used because that is 

the time period in which the bonus was earned. In this 

hypothetical, the employee had worked 160 regular hours and 20 

overtime hours in December 2017, for a total of 180 hours. First, 

divide $360 by 180, which results in $2. This number represents 

the increase to the regular hourly rate. Multiply $2 by 0.5 and 

the result, $1, represents the increase to the overtime hourly

rate. Then, take $1 and multiply it by 20, the overtime hours 

worked during December 2017, and the result, $20, is the 

overtime pay adjustment, which would be identified as the 

OverTimePay-Override line on the wage statement. This 

allocation, at least for production or piecework bonuses, is 

calculated by using the method described above in footnote 4. 

C. Section 226, Subdivision (a)(9) Does Not Require Hourly

 Rate and Hours Worked to be Identified For OverTimePay-

 Override

The Court of Appeal in Morgan discussed the purpose of

section 226, subdivision (a)(9): “The 2000 amendment [which 

added subdivision (a)(9)] . . . expanded the scope of information to 

be included by employers in the itemized wage statements 

furnished to employees. Following the amendment, an employer 

 

Plaintiffs contend that pursuant to Peabody v. Time Warner

Cable, Inc. (2014) 59 Cal.4th 662, 669, defendant was prevented 

from paying OverTimePay-Override for wages earned in prior 

pay periods. Peabody v. Time Warner Cable, Inc., is inapposite. 

In that case, our Supreme Court held an employer could not 

attribute wages paid in one period to a prior pay period in order 

to meet an exemption for minimum wages. (Ibid.) It has no 

application to the OverTimePay-Override line at issue here.
12

that previously listed the total hours worked by an employee in a 

single category [as required under subdivision (a)(2)] was now 

required to list both the total regular hours worked and the total 

overtime hours worked, along with the corresponding hourly 

rates. It appears that by adding this more specific requirement, 

the statute made it easier for employees to determine whether 

they were being paid for all hours worked at the appropriate 

rates of pay.” (Morgan, supra, 186 Cal.App.4th at p. 1148.)

Subdivision (a)(6) requires that the wage statement show 

“the inclusive dates of the period for which the employee is paid.”

Applying the standards of statutory construction, in the context 

of section 226 as a whole, the “pay period” discussed in 

subdivision (a)(9), which requires that the wage statement 

include “all applicable hourly rates in effect during the pay 

period,” refers to the period described in subdivision (a)(6). In our 

hypothetical wage statement above, we interpret the pay period 

to refer to the two-week period covered by the wage statement, 

January 7 to January 20, 2018. 

Defendant argues it was not required to provide on the 

wage statement hourly rates or hours worked related to 

OverTimePay-Override. Defendant has met its initial burden of 

production. (Code Civ. Proc., § 437c, subd. (p)(2).) Based on the 

above statutory construction and the method by which 

OverTimePay-Override was calculated, there were no “applicable 

hourly rates in effect during the pay period” that 

corresponded to OverTimePay-Override. Accordingly, there was

also no “corresponding number of hours worked at each hourly 

rate by the employee” for the pay period that applied to 

OverTimePay-Override. As discussed above, OverTimePayOverride represented additional wages that were earned as 
13

overtime pay based on nondiscretionary bonuses being spread 

over the hours worked during the bonus period. Moreover, based 

on how OverTimePay-Override was calculated, the overtime

hours were worked in previous pay periods for which employees 

had already received their standard overtime pay. The itemized 

wage statement issued by an employer need only provide the 

applicable hourly rates and the corresponding number of hours 

worked “in effect during the pay period.” In other words, the 

employer need only identify on the wage statement the hourly 

rate in effect during the pay period for which the employee was 

currently being paid, and the corresponding hours worked. 

Plaintiffs argue to the contrary, but have failed to meet 

their burden. (Code Civ. Proc., § 437c, subd. (p)(2).) “[S]ection 

226, subdivision (a) is highly detailed, containing nine separate 

categories that must be included on wage statements . . . . When 

a statute omits a particular category from a more generalized list, 

a court can reasonably infer a legislative intent not to include 

that category within the statute’s mandate.” (Soto v. Motel 6 

Operating, L.P. (2016) 4 Cal.App.5th 385, 391.) The purpose of 

spreading the bonus over the hours worked during the bonus 

period is to calculate the “regular rate of pay” for overtime under 

section 510. Defendant’s wage statements included the regular 

rate of pay, the overtime rate of pay, and the hours worked at 

each rate. Each of these was “in effect during the pay period,” 

January 7 to January 20 in our example. The OverTimePayOverride was an adjustment to the overtime payment due to an 

employee, based on bonuses earned by the employee for work 

performed during prior pay periods. Accordingly, there were no 

applicable hourly rates in effect during the pay period which 

defendant was required to include in the wage statement.
14

Plaintiffs contend a federal district court case, Ontiveros v. 

Safelite Fulfillment, Inc. (C.D.Cal. 2017) 231 F.Supp.3d 531 

(Ontiveros) is directly on-point and supports their position. In 

Ontiveros, the district court found that the employer’s wage 

statements were deficient for failing to report overtime wages 

associated with an installation bonus. (Id. at pp. 540-541.) The 

district court reasoned: “It is undisputed that Plaintiff earned 

additional overtime wages if he worked overtime during the same 

period that an installation bonus was earned, as this bonus would 

lead to an increase in his regular rate under 29 C.F.R. § 778.109. 

. . . It is also undisputed that when Plaintiff earned installation 

bonuses, his wage statements reflected both the underlying 

bonus earned and the additional overtime wages owed as a single 

line item. . . . Finally, it is undisputed that the wage statement 

does not have information from which Plaintiff could calculate 

the additional overtime owed as a result of participation in the 

installation bonus program. . . . The Court concludes that the 

‘regular rate’ is an ‘applicable hourly rate.’ As such, the law 

requires that the regular rate appear on the face of the wage 

statement or else be ascertainable from the information included 

therein. Because it was not possible to promptly and easily 

determine the regular rate from the wage statements when an 

employee was enrolled in the installation bonus program, the 

statements were deficient. [Fn. omitted.]” (Ibid.)

Ontiveros is distinguishable. Ontiveros involved a piecerate compensation, paid weekly. (231 F.Supp.3d at p. 535.) 

Additionally, the bonus earned and additional overtime wages 

were reflected on the wage statement on one line, rather than 

being separated. (Id. at p. 540.) Finally, the bonus was based on 
15

work performed during the pay period reflected in the wage 

statement. (See id. at p. 534.)

Plaintiffs also cite a May 17, 2002 opinion letter from the 

Division of Labor Standards Enforcement (DLSE). That letter 

concerned a unique situation in which an employer continually 

listed 86.67 hours as the hours worked by its employees during 

each pay period, regardless of whether it was true. The DLSE 

was concerned with an employer’s failure to list all hours worked 

during the pay period, including overtime. To the extent the 

DLSE determined an employer must comply with section 226 

when making additional overtime payments for work performed 

in prior pay periods, we conclude the DLSE opinion letter is not 

applicable. Accordingly, we find defendant should prevail as a 

matter of law on this theory.

D. No Violation for not Providing an Itemized Statement at Time

 of Termination

Defendant argues it is in compliance with section 226, 

subdivision (a) because it “furnished” the wage statement to the 

discharged employee by United States mail. As noted, section 

226, subdivision (a) provided, “[e]very employer shall,

semimonthly or at the time of each payment of wages, furnish 

each of his or her employees, either as a detachable part of the 

check, draft, or voucher paying the employee’s wages, or 

separately when wages are paid by personal check or cash, an 

accurate itemized statement in writing . . . .” It is undisputed 

defendant provided some discharged employees with their last 

wages in-store by cashier’s check, in compliance with the Labor 

Code. (See §§ 201, subd. (a) [“[i]f an employer discharges an 
16

employee, the wages earned and unpaid at the time of discharge 

are due and payable immediately”], 208 [“[e]very employee who is 

discharged shall be paid at the place of discharge”].) “Furnish” 

means to “provide with what is needed,” or to “supply” or “give.” 

(Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 474, col. 

1.) Section 226 provides that an employer must furnish the wage 

statement as either “a detachable part of the check, draft, or 

voucher paying the employee’s wages,” or separately when the 

wages are paid by personal check or cash. Other than that one 

provision, section 226 describes no other specific means by which 

an employer is to furnish the itemized statement to an employee. 

Thus, mailing the wage statement is a viable means to “furnish.” 

Defendant could also furnish the wage statement separately 

because paying discharged employees by cashier’s check was the 

equivalent of paying them by cash.11 However, the Legislature 

also provided for when an employer was to furnish the wage 

statement to the employee: “semimonthly or at the time of each 

payment of wages.” 

 

11 As argued by defendant, a cashier’s check was the 

equivalent of paying by cash. (See Gray1 CPB, LLC v. SCC 

Acquisitions, Inc. (2015) 233 Cal.App.4th 882, 893-894, 896 

[citing U. Com. Code, § 3310, cashier’s check taken for obligation 

has same effect as cash].) Plaintiffs argue for the first time in 

their reply brief that a cashier’s check is not the equivalent of a 

personal check or cash for purposes of section 226. This issue 

was not raised in the opening brief nor before the trial court and 

is therefore waived and forfeited. (Tellez v. Rich Voss Trucking, 

Inc. (2015) 240 Cal.App.4th 1052, 1066; SCI California Funeral 

Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 

549, 573, fn. 18; Greenwich S.F., LLC v. Wong (2010) 190 

Cal.App.4th 739, 767.)
17

We first find that for purposes of the Labor Code, “at the 

time of each payment of wages” for discharged employees means 

“immediately.” As noted, a discharged employee’s unpaid earned 

wages are due and payable “immediately.” (§ 201, subd. (a).) 

When construing section 226 in relation to the Labor Code, the 

most logical construction of “at the time of each payment of 

wages” in section 226 for discharged employees is whenever the 

discharged employee receives his or her unpaid earned wages, 

which is “immediately.” Because defendant in some instances did 

not provide wage statements immediately to discharged 

employees, but rather mailed the statement to the employee’s 

last known address the same day or the next day, defendant did

not furnish the wage statement to these discharged employees “at 

the time of each payment of wages.” 

However, by the plain meaning of the statute, defendant 

also had the option of furnishing the wage statement 

semimonthly. (§ 226, subd. (a).) Additionally, nothing in section 

226 suggests that an employer cannot furnish the wage 

statement prior to the semimonthly date. For example, suppose 

an employer furnishes wage statements on the first and the 

fifteenth of each month. The employer discharges an employee 

on the second of the month. Per the statute’s plain language, if 

an employer pays the final wages by personal check or cash, it

has the option of furnishing the discharged employee with the 

wage statement on the fifteenth. We find it illogical to conclude 

an employer violates section 226 by furnishing a wage statement 

before the semimonthly date has been reached. If the employer 

furnishes the wage statement to the discharged employee on the 

fifth of the month, the employer has complied with the 

requirement that it furnish the wage statement to the employee 
18

“semimonthly” because the employee would have ostensibly been 

furnished with the wage statement by the semimonthly date. 

For purposes of section 226, if an employer furnishes an 

employee’s wage statement before or by the semimonthly

deadline, the employer is in compliance. Thus, we interpret 

“semimonthly or at the time of each payment of wages” as

representing the outermost deadlines by which an employer is 

required to furnish the wage statement. Since defendant mailed

the wage statement to certain discharged employees paid in-store 

by the same day as or the next day after termination, defendant 

was in compliance with section 226 because the employee was 

“furnished” with the wage statement semimonthly. Defendant 

has met its initial burden of production. (Code Civ. Proc., § 437c, 

subd. (p)(2).)

Plaintiffs contend the wage statement must be furnished 

immediately for a discharged employee. Plaintiffs cite the DLSE 

Policies and Interpretations Manual (DLSE Manual), section 

14.1.1, which provides, “[a] California employer must furnish a 

statement showing the following information to each employee at 

the time of payment of wages (or at least semimonthly, whichever 

occurs first),” and section 14.1.2, which provides, “[s]ection 

226 . . . sets out the employer’s responsibilities in connection with 

the wage statement which must accompany the check or cash 

payment to the employee.”

Plaintiffs have not met their burden. (Code Civ. Proc., 

§ 437c, subd. (p)(2).) There is no evidence in the record that the 

DLSE adopted this interpretation in accordance with the 

Administrative Procedure Act (Gov. Code, § 11340 et seq.). Thus, 

it is the equivalent of a void underground regulation. (Tidewater 

Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 576-
19

577.) As our Supreme Court held, “when an agency like the 

DLSE sets forth an interpretive policy in a void underground 

regulation, the deference that the agency’s interpretation would 

normally enjoy is absent, but in its place the agency has its power 

to persuade.” (Alvarado, supra, 4 Cal.5th 542, 559.)

The DLSE’s interpretation is not persuasive. The term 

“whichever occurs first” is not in section 226. The plain meaning 

of the statute indicates the Legislature specifically intended a 

choice for employers as to when to furnish the wage statement. 

There is also no requirement in section 226 that the wage 

statement “must accompany” the personal check or cash payment 

to the employee. As noted, the wage statement must be a 

detachable part of the check, draft, or voucher, unless payment is 

by personal check or cash; in such instance the wage statement 

may be furnished separately. (§ 226, subd. (a).) Accordingly, we 

decline to follow the DLSE’s interpretation.

Plaintiffs cite several cases that purportedly determined 

that section 226, subdivision (a) requires employers to furnish a 

wage statement to each employee “at the time wages are paid.” 

(See Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 

585, 591 (Zavala); Reinhardt v. Gemini Motor Transport

(E.D.Cal. 2012) 879 F.Supp.2d 1138, 1141 (Reinhardt); In re 

Bimbo Bakeries USA FLSA Actions (N.D.Cal. Oct. 24, 2008, No. 

C 05-00829 JW) 2008 WL 10850153, at *7, 2008 U.S. Dist. Lexis 

125068, at *23 (Bimbo Bakeries).) Such statements were dicta as 

the cases concerned issues unrelated to the one here. (Zavala, 

supra, 143 Cal.App.4th at pp. 592-593 [whether collective 

bargaining agreement required arbitration of Labor Code claims]; 

Reinhardt, supra, 879 F.Supp.2d at pp. 1141-1142 [whether 

plaintiffs sufficiently alleged Labor Code violations were 
20

“‘knowing and intentional’” for recovery under § 226, subd. (e)]; 

Bimbo Bakeries, supra, 2008 WL 10850153, at *7, 2008 U.S. Dist. 

Lexis 125068, at *24 [whether defendant’s violation was 

“knowing and intentional” for summary judgment purposes].) 

They are thus unpersuasive. 

Defendant should prevail on this theory. Because there are 

no triable issues of material fact and defendant is entitled to 

judgment as a matter of law, summary judgment was properly 

granted in its favor.

IV. DISPOSITION

The judgment is affirmed. Defendant Wells Fargo Bank, 

N.A. is entitled to recover its costs on appeal from plaintiffs Fabio 

Canales and Andy Cortes.

CERTIFIED FOR PARTIAL PUBLICATION

KIM, J.

We concur:

KRIEGLER, Acting P.J. BAKER, J.

 

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.