Filed 9/25/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LEA LIDAY,

Plaintiff and Respondent,

v.

PETER SIM et al.,

Defendants and Appellants.

B283180

Los Angeles County

Super. Ct. No. BC542513

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Josh M. Fredricks, Judge. (Retired judge 

of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to 

art. VI, § 6 of the Cal. Const.) Reversed with directions.

Schlichter & Shonack, Jamie L. Keeton and Ben Rothman 

for Defendants and Appellants. 

Law Offices of C. Joe Sayas, Jr., C. Joe Sayas, Jr., and 

Karl P. Evangelista for Plaintiff and Respondent. 

_________________________
2

INTRODUCTION

When determining a claim for unpaid minimum wages, 

does the court presume that a fixed salary paid to a live-in 

domestic worker—who is exempt from overtime but subject to 

minimum wage laws—covers only the regular, nonovertime work 

hours mandated for nonexempt workers? Or, does the court 

determine the worker’s unpaid minimum wages by calculating 

the difference between the total number of hours she worked at 

the prevailing minimum wage rate and the amount she received 

through her salary? That is the question this wage-and-hour 

appeal poses.

Lea Liday sued her former employers, appellants, for 

unpaid wages incurred from April 2010 to April 2014. Liday 

worked for appellants as their children’s live-in caretaker for 

a fixed salary of $3,000 per month. After a bench trial, the trial 

court found Liday was a “personal attendant” under Wage Order 

No. 15, 2001 (Cal. Code Regs., tit. 8, § 11150 (Wage Order 15)). 

It also found Liday’s salary did not compensate her at the 

statutory minimum wage for all the hours it found she had

worked. Appellants do not contest the trial court’s finding that 

Liday worked more hours than they had argued at trial, but 

they do challenge the propriety of the formula the court used to 

determine Liday’s unpaid minimum wages due from April 2010 

through December 2013.

Before 2014, live-in domestic workers classified as 

“personal attendants” were exempt from California’s overtime 

requirements but were entitled to be paid at least the minimum 

wage for all hours worked. The Legislature passed the Domestic

Workers Bill of Rights (DWBR) to provide personal attendants 

with overtime protection beginning January 1, 2014. Under that 

law, personal attendants cannot work more than nine hours per 

day or more than 45 hours per week unless paid one and one-half 
3

times their regular rate of pay for all hours worked in excess of 

those limits. (Lab. Code, § 1454.)1 

The DWBR applied only to the last three months of Liday’s 

employment. The trial court acknowledged Liday was exempt 

from overtime requirements for the period from 2010 through 

2013. But, to calculate her unpaid minimum wages for that 

period, the court presumed Liday’s salary compensated her for 

a regular, nonovertime 45-hour workweek—the number of hours 

above which overtime is due under the 2014 law. It calculated 

Liday’s regular, hourly rate to be $15.38 by dividing her averaged 

weekly salary by 45 hours and concluded appellants owed Liday 

minimum wages at that rate for the hours she worked in excess 

of 45 per week.

Appellants argue the trial court erred when it presumed a 

45-hour workweek to make this calculation because Liday was 

exempt from overtime. They assert the court should have divided 

Liday’s salary by the $8 per hour statutory minimum wage to 

determine how many hours Liday’s salary had covered and then 

ordered appellants to pay Liday for any uncompensated hours 

at $8 per hour. The difference is significant. Using the $15.38 

per hour rate at a presumed 45 hours per week, the court found 

appellants owed Liday $265,720.26 in unpaid wages earned 

before 2014. Applying the minimum wage rate of $8 per hour to 

each hour the court found Liday worked, the amount drops to 

under $75,000. 

Because personal attendants were exempt from overtime 

requirements before 2014, we conclude California law in effect at 

the time did not limit the number of hours a personal attendant’s 

1 All statutory references are to the Labor Code unless 

indicated otherwise.
4

salary could cover, except to require that it pay at least the 

minimum wage of $8 per hour for each hour worked. As the 

parties do not dispute the trial court’s finding that they did not

agree to an hourly rate, and nothing in the record demonstrates 

they agreed Liday would work a set number of hours per week, 

the court erred when it presumed Liday’s monthly salary 

compensated her for only 45 hours of work per week. We thus 

reverse the judgment and remand to the trial court to recalculate 

the unpaid wages appellants owe Liday for work she performed 

from April 2010 through December 2013 applying an $8 per hour 

rate of pay for each hour she worked.

FACTS AND PROCEDURAL BACKGROUND

Liday was a live-in personal attendant for the two autistic 

sons of appellants Peter Sim, M.D., and Loraine Diego, M.D., 

from December 2002 until April 2014. Liday quit in April 2014 

and sued appellants for failure to pay overtime, failure to pay 

wages for all hours worked in violation of the minimum wage 

law, waiting time penalties, unfair competition, and civil 

penalties under the Labor Code Private Attorney General Act 

(PAGA). After a bench trial, the court found in Liday’s favor 

on all causes of action except her PAGA claim and found the 

relevant claims period to be April 2010 to April 2014.2 

Appellants requested a statement of decision, and the court 

heard argument on the proposed statement on February 6, 2017.

2 Liday’s claims for violating the Labor Code were subject 

to a three-year statute of limitations, but her unfair competition 

claim extended to the period four years before she filed her 

action. (Code Civ. Proc., § 338, subd. (a); Bus. & Prof. Code, 

§ 17208.) Accordingly, Liday could recover unpaid wages from 

April 2010 as restitution under her unfair competition claim. 

For simplicity, we do not differentiate between Liday’s recovery 

of unpaid wages versus restitution. 
5

On March 17, 2017, the court issued its statement of 

decision and entered judgment in Liday’s favor awarding her 

$403,256.33, including prejudgment interest. The judgment 

included unpaid wages for the entire claims period, but the 

only period relevant to this appeal is from April 2010 through 

December 2013. As appellants do not contest the court’s 

underlying factual findings, we primarily state the facts relevant 

to the appeal as described in the court’s statement of decision.

1. Liday’s personal attendant status

Sim and Diego, a married couple, are both medical doctors. 

The couple hired Liday as a live-in caretaker for their son who 

was born in October 2002. Liday also cared for appellants’ second 

son, born in December 2005. Their first child, who was between 

eight and 12 years old during the claims period, is severely 

autistic and nonverbal. Their younger son, between five and 

nine years old at the time, is mildly autistic. Appellants paid 

Liday $3,000 a month during the relevant period.3 

The children went to school Monday through Friday, 

leaving the house at about 8:00 a.m. and returning at about 

2:00 p.m. While at home, appellants’ elder son required 

continuous supervision and attention. He also had sleeping 

issues. Liday slept in the boy’s room to be available to supervise 

him when he woke up at night. The court found Liday supervised 

or was available to supervise appellants’ children around the 

clock, except during the time they were at school. It thus 

concluded Liday worked 18 hours per day on weekdays and 

24 hours per day on Saturdays and Sundays. She took about 

3 Appellants sometimes paid Liday $2,500 per month when 

she took a weekend off work.
6

three to four weekends off per year, totaling 14 weekends for 

the entire April 2010 to December 2013 period. 

The court also found Liday did not perform significant 

nonattendant work for the couple and classified her as a 

“personal attendant” under Wage Order 15. As a personal 

attendant, Liday was entitled to receive the minimum wage 

for all hours that she worked but was exempt from overtime 

requirements during the period from April 2010 through 

December 31, 2013.4 For that period, therefore, Liday’s recovery 

was limited to unpaid wages under the minimum wage law. 

The parties stipulated that the minimum wage during that time 

was $8 per hour. 

2. Liday’s wages and hourly rate

Liday testified that when she first was hired in 2002, Sim 

told her he would pay her $1,000 per month to work six days a 

week. They did not discuss the number of work hours required. 

Liday testified she began working seven days a week in 2004 

after she borrowed money from Sim through pay advances; she 

also received a raise at that time.5 She began making $3,000 per 

month around 2005. The court found Liday credibly testified she 

and appellants never discussed her hourly rate of pay. 

Sim testified he and Liday never discussed salaries during 

the 2010 to 2014 time frame, but he did when he hired her. Sim 

also testified Liday began to work seven days a week when he 

began to advance her pay. Sim said the $3,000 per month was 

4 The DWBR governed only the last three months of Liday’s 

employment—January 1, 2014 through April 4, 2014. Appellants 

do not challenge the court’s calculation of overtime and unpaid 

wages they owed Liday for that period.

5 Liday testified she paid off the 2004 loan from Sim by 2012. 
7

not a salary; he based Liday’s pay on an $8 hourly rate and 

estimated how many hours she worked per day. Appellants kept 

no record of the hours Liday worked. In preparation for his 

deposition in this case, Sim created a chart estimating Liday’s 

work at 9.5 hours per weekday at $8 per hour, $82 per week, 

plus $196 per month to pay for additional hours. Sim “just came 

up with” the $196 number. The court found Sim’s postfiling 

estimates of Liday’s hours and his testimony that he discussed 

paying her $8 per hour not credible. It found Sim’s calculations 

did not support “his assertion” that he paid Liday $8 per hour. 

The court concluded there was “no evidence to prove one 

way or the other” Liday’s hourly rate. It found Liday was not 

entitled to overtime before January 1, 2014, but was “entitled 

to be paid wages for each hour” she worked. Because there was 

no mutual wage agreement, the court presumed Liday’s $3,000 

per month salary compensated her for nine hours of work per 

day, 45 hours per week—the regular, nonovertime work hours 

applicable to personal attendants beginning in January 2014. 

It thus calculated an hourly rate for Liday at $15.38 by dividing 

her average weekly salary of $692.31 by 45 hours. 

That calculation, proffered by Liday’s counsel, was based 

on the formula used to determine overtime wages for salaried, 

nonexempt employees found in section 515. Addressing 

appellants’ counsel’s argument there was no basis for calculating 

Liday’s hourly rate based on a 45-hour workweek and that 

section 515 did not apply, the court explained, “I’m not basing it 

on the fact that someone cited . . . a definitive case or code section 

about how to calculate this. I’m just persuaded by looking at the 

whole banana here, that that is the correct way to do this. Even 

though . . . this is an ex[em]pt employee, . . . and even though 

she’s not entitled to overtime. We have to calculate it based on 

something. And I understand you want me to calculate it on $8, 
8

but I think that the logic of this is that, and that’s what I’m 

persuaded by, that in the—the nonexempt employees, that—this 

is the way that they calculate and you agree with that. I just 

think this is the way we should calculate it in this case, also. . . . 

It’s not because I’m persuaded by some code section or a case.” 

3. Liday’s unpaid minimum wages

The court applied Liday’s “regular rate” of $15.38 per hour 

to the hours Liday worked in excess of 45 per week to determine 

her unpaid wages. For the period at issue on appeal, April 2010 

to December 2013, the court found Liday worked (a) 138 hours 

per week for 179 weeks, and (b) 90 hours per week for 14 weeks. 

Assuming a 45-hour workweek and a $15.38 hourly rate, the 

court concluded Liday was not paid for 93 hours per week for 

179 weeks, $256,030.86, and was not paid for 45 hours per week 

for 14 weeks, $9,689.40, for a total of $265,720.26 in unpaid 

wages.6 The court also awarded Liday prejudgment interest. 

Appellants timely moved for a new trial on the ground that 

the trial court erred in calculating Liday’s pre-2014 hourly rate 

based on the “regular rate” formula for calculating overtime

for nonexempt employees. They argued the court should have 

calculated Liday’s pre-2014 unpaid wages based on the minimum 

wage rate of $8 per hour for each hour she worked. The court 

heard and denied the motion on May 19, 2017. It reiterated, 

“I think that this [is] the analogous and appropriate way to 

6 Specifically, the court first determined Liday’s averaged 

weekly salary was $692.31 ($3,000 x 12 months/52 weeks), and 

then divided it by 45 hours to reach an hourly “regular rate” of 

$15.38. The court then multiplied the $15.38 hourly rate by the 

number of hours Liday worked per week in excess of 45 hours to 

determine Liday’s unpaid wages. 
9

determine what the regular hourly rate was and that’s why 

I calculated it that way.” 

This appeal followed.

DISCUSSION

Appellants challenge only that portion of the judgment 

awarding Liday unpaid minimum wages from 2010 through 2013. 

They contend, that because Liday was entitled to be paid the 

minimum wage, but was exempt from overtime requirements 

during this period, the court erred when it found Liday’s monthly 

salary compensated her for only 45 hours per week, entitling her 

to unpaid wages at a “regular rate” of $15.38 per hour for all 

hours she worked in excess of 45 per week. They argue the court 

instead should have applied the prevailing minimum wage rate 

of $8 per hour to all hours Liday worked during the contested 

period to determine the amount of wages appellants owed. 

Appellants ask us to reduce Liday’s base award of pre-2014 

unpaid wages from $265,720.26 to $74,080.17, and to remand the 

matter to the trial court to reduce the corresponding prejudgment 

interest due. 

Liday acknowledges the court’s finding that she was an 

overtime-exempt personal attendant, but contends its method 

to calculate her unpaid wages was proper. She argues that as a 

salaried employee subject to the minimum wage, and without an 

agreed hourly rate, the 45-hour nonovertime workweek applied to 

her so that her salary compensated her for 45 hours of work per 

week and no more. We disagree with Liday’s interpretation and 

application of the law to the unchallenged facts before us.

1. Governing law and standard of review

“[W]age and hour claims are today governed by two 

complementary and occasionally overlapping sources of 

authority: the provisions of the Labor Code, enacted by the 

Legislature, and a series of 18 wage orders, adopted by the 
10

IWC.”7 (Brinker Restaurant Corp. v. Superior Court (2012) 

53 Cal.4th 1004, 1026 (Brinker).) “The IWC, a state agency, 

was empowered to issue wage orders, which are legislative 

regulations specifying minimum requirements with respect 

to wages, hours, and working conditions.” (Mendiola v. CPS 

Security Solutions, Inc. (2015) 60 Cal.4th 833, 838 (Mendiola).) 

Although the Legislature has since defunded the IWC, its wage 

orders are still in effect. (Gonzalez v. Downtown LA Motors, LP

(2013) 215 Cal.App.4th 36, 43 (Gonzalez).) 

Wage orders “have the force of law” (Dynamex v. Superior 

Court (2018) 4 Cal.5th 903, 914, fn. 3), and “must be given 

‘independent effect’ separate and apart from any statutory 

enactments” (Brinker, supra, 53 Cal.4th at p. 1027). Thus, when 

a wage order and statute overlap, “we will seek to harmonize 

them, as we would with any two statutes.” (Ibid.) 

Like statutes, the interpretation of a wage order is a 

question of law that we consider de novo. (Smith v. Superior 

Court (2006) 39 Cal.4th 77, 83; Gonzalez, supra, 215 Cal.App.4th 

at p. 44.) We apply the ordinary principles of statutory 

construction to both the Labor Code and the IWC’s wage orders, 

“beginning with and focusing on the text as the best indicator 

of legislative purpose.” (Brinker, supra, 53 Cal.4th at pp. 1026-

1027; Mendiola, supra, 60 Cal.4th at p. 840; Gonzalez, at p. 43.) 

We give the words of the statute (or regulation) “their ordinary 

and usual meaning” and construe them “in their statutory 

context.” (Gonzalez, at p. 43; Ward v. Tilly's, Inc. (2019) 31 

Cal.App.5th 1167, 1175.) “When the language is clear, ‘we apply 

the language without further inquiry.’ ” (Ward, at p. 1175.) 

If the language is susceptible to more than one reasonable 

7 “IWC” stands for Industrial Welfare Commission. (§ 70.)
11

interpretation, we “may consider ‘ “a variety of extrinsic aids, 

including the ostensible objects to be achieved, the evils to be 

remedied, the legislative history, public policy, contemporaneous 

administrative construction, and the statutory scheme of which 

the statute is a part.” [Citation.]’ ” (Gonzalez, at p. 44.)

We liberally construe state wage and hour laws in favor of 

the legislative policy to protect workers. (Gonzalez, supra, 215 

Cal.App.4th at p. 44.) But we must avoid a judicial construction 

“that renders any part of the wage order meaningless or 

inoperative” (ibid.), or leads to “absurd consequences” (Singh 

v. Superior Court (2006) 140 Cal.App.4th 387, 393).

We also independently review the application of law to 

undisputed facts. (Boling v. Public Employment Relations Bd.

(2018) 5 Cal.5th 898, 912.)

2. Wage and hour laws applicable to Liday

The payment of a wage lower than the minimum “fixed” by 

the IWC or applicable law is unlawful. (§ 1197.) Under section 

1194, “any employee receiving less than the legal minimum wage 

or the legal overtime compensation applicable to the employee is 

entitled to recover in a civil action the unpaid balance of the full 

amount of this minimum wage or overtime compensation.” When 

an employee sues to recover unpaid minimum wages under 

section 1194, she “actually sues to enforce the applicable wage 

order.” (Martinez v. Combs (2010) 49 Cal.4th 35, 62, 64.) “This is 

because the ‘legal minimum wage’ recoverable under section 1194 

is ‘[t]he minimum wage . . . fixed by the commission’ (§ 1197) 

in the applicable wage order . . . and because employers and 

employees become subject to the minimum wage only through 

the applicable wage order and according to its terms [citation].” 

(Ibid.) The prevailing minimum wage “fixed” during the relevant 

period—to which the parties stipulated—was $8 per hour. 

(Former § 1182.12, added by Stats. 2006, ch. 230, § 1.)
12

“The number and complexity of wage orders reflect the 

reality that differing aspects of work in differing industries 

may call for different kinds of regulation.” (Mendiola, supra, 

60 Cal.4th at p. 839.) The wage order at issue in this case, 

Wage Order 15, applies to all persons employed in household 

occupations, including “personal attendants.” (Wage Order 15, 

subd. 1.) As defined by the wage order, “personal attendants” 

include babysitters and individuals employed “to supervise, 

feed, or dress a child or person who by reason of advanced age, 

physical disability, or mental deficiency needs supervision.” 

(Wage Order 15, subd. 2(J).) The court determined Liday was 

a personal attendant as defined by Wage Order 15. The parties 

do not challenge that finding on appeal. 

Before 2001, Wage Order 15 did not apply to personal 

attendants at all. (IWC Order No. 15-2000, subd. 1(B) 

<https://www.dir.ca.gov/iwc/Wageorders2000/iwcarticle15.html> 

[as of Sept. 24, 2019], archived at <https://perma.cc/X53Z-H3GQ>

[“The provisions of this Order shall not apply to personal 

attendants.”].) Personal attendants thus were exempt from both

the minimum wage and overtime requirements found in Wage 

Order 15. In 2001, however, the IWC amended Wage Order 15 

to remove the personal attendant exemption from its minimum 

wage requirement. (Compare IWC Order No. 15-2000, 

subd. 1(B), supra, with Wage Order 15, subds. 1(B), 4.) 

Subdivision 4 of Wage Order 15, entitled “Minimum Wages,” 

provides: “Every 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.” (Wage Order 15, subd. 4(B); subd. 

(4)(A) [“[e]very employer shall pay to each employee wages not 
13

less than [the prevailing minimum hourly wage] for all hours 

worked”].) 

The express language of Wage Order 15, however, 

unambiguously exempts personal attendants from most of its 

other provisions, including overtime. (Wage Order 15, subd. 1(B) 

[“Except as provided in sections 1, 2, 4, 10, and 15, the provisions 

of this Order shall not apply to personal attendants.”].) Thus, 

the provisions restricting domestic workers’ number of hours 

and days of work, providing meal and rest periods, and requiring 

employers to keep certain records, among others, did not apply to 

Liday. (See Wage Order 15, subds. 1(B), 3 [“Hours and Days of 

Work”], 7 [“Records”], 11 [“Meal Periods”], 12 [“Rest Periods”].)

Unlike overtime-exempt personal attendants, nonexempt 

employees in general must be paid one and one-half times their 

“regular rate of pay” if they work more than eight hours per day 

and 40 hours per week. (§ 510 [“Eight hours of labor constitutes 

a day’s work.”].) Similarly, live-in, non-personal attendant 

domestic workers are entitled to at least three duty-free hours 

within any 12-hour span of work and may not be required to 

work more than five days without a day off, unless paid overtime. 

(Wage Order 15, subds. 3(A)(1), (B).)

The Legislature amended the personal attendant overtime 

exemption when it enacted the DWBR. Beginning January 1, 

2014, under section 1454, a personal attendant may not be 

employed for “more than nine hours in any workday or more than 

45 hours in any workweek unless the employee receives one and 

one-half times the employee’s regular rate of pay for all hours 

worked over nine hours in any workday and for all hours worked 

more than 45 hours in the workweek.” 

It is undisputed, however, that section 1454 did not apply 

to Liday’s claim for unpaid wages incurred from April 2010 
14

through December 31, 2013.8 Thus, Liday was an overtimeexempt personal attendant under Wage Order 15 during the 

entire period challenged on appeal. Accordingly, for the pre-2014 

period, by the express, unambiguous terms of Wage Order 15, 

appellants were required to pay Liday at least the minimum 

wage of $8 per hour for all hours she worked, but were not 

obligated to limit Liday’s required daily or weekly work hours 

or to pay her premium overtime wages. (See Wage Order 15, 

subds. 1(B), 3(A) & (B) [excluding personal attendants from 

“Hours and Days of Work” provision that limits a live-in 

employee’s daily and weekly work hours and requires employer 

to compensate employee at one and one-half times or double her 

regular rate of pay if those limits are exceeded].) 

3. Pre-2014 California law does not support the 

court’s presumption 

Although Liday was an overtime-exempt employee under 

Wage Order 15, the court nonetheless determined appellants’ 

pre-2014 minimum wage obligation by applying the formula for 

calculating salaried, nonexempt employees’ “regular rate” of pay 

of dividing their salary by their regular, nonovertime hours. 

Liday argues this method was proper because “when an employer 

chooses to pay an employee not exempt from the minimum-wage 

laws a fixed monthly salary, such salary constitutes payment 

only for said employee’s regular, non-overtime hours.”

While that statement may be true for Liday’s 2014 wage 

claims, it is not for her pre-2014 claims when she was exempt

8 No one has argued section 1454 is retroactive and nothing 

indicates the Legislature intended it to be so. (Californians for 

Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230 

[“statutes operate prospectively absent a clear indication the 

voters or the Legislature intended otherwise”].)
15

from overtime requirements. The authorities on which Liday 

relies—section 515, the DLSE Enforcement Polices and 

Interpretations Manual9 and Hernandez v. Mendoza (1988) 199 

Cal.App.3d 721 (Hernandez)—do not require otherwise. They all 

relate to calculating unpaid overtime for nonexempt employees.

a. The express language of the Labor Code demonstrates 

the “regular hourly rate” calculation was intended to 

determine overtime wages for nonexempt employees

Liday argues the trial court’s calculation of her “regular 

hourly rate” based on her weekly salary divided by a regular, 

nonovertime workweek of 45 hours is “congruent with” section 

515 and the DLSE Manual. We disagree. 

Section 515, subdivision (d)(1) provides: “For the purpose of 

computing the overtime rate of compensation required to be paid 

to a nonexempt full-time salaried employee, the employee’s 

regular hourly rate shall be 1/40th of the employee’s weekly 

salary.” (Italics added.) Section 515, subdivision (d)(2) in turn 

states that “[p]ayment of a fixed salary to a nonexempt employee 

9 The DLSE—Division of Labor Standards Enforcement—

is the agency “charged with enforcing California’s labor laws, 

including the IWC wage orders.” (Alvarado v. Dart Container 

Corp. of California (2018) 4 Cal.5th 542, 551, 555.) Its most 

recent policy manual interpreting California’s labor laws is 

published online. (See DLSE, The 2002 Update of the DLSE 

Enforcement Policies and Interpretations Manual (rev. Aug. 

2019) <https://www.dir.ca.gov/dlse/DLSEManual/dlse_

enfcmanual.pdf> [as of Sept. 24, 2019], archived at 

<https://perma.cc/AS8Z-K4NC> (DLSE Manual); Alvarado, at 

p. 555.) Although DLSE policies are not necessarily entitled 

to deference, a reviewing court may adopt the DLSE’s 

interpretation if independently persuaded it is correct. 

(Alvarado, at p. 561.)
16

shall be deemed to provide compensation only for the employee’s 

regular, nonovertime hours, notwithstanding any private 

agreement to the contrary.”10 (Italics added.) Thus, as we 

discuss below, an employer may not calculate a nonexempt

salaried employee’s hourly rate by dividing her salary by the 

combined total number of nonovertime and overtime hours she 

worked. Including overtime hours in the calculus would reduce 

the employee’s hourly rate, thereby reducing the base rate for 

computing her overtime compensation to one lower than if she 

had worked a regular, 40-hour workweek. (See Skyline Homes, 

Inc. v. Department of Industrial Relations (1985) 165 Cal.App.3d 

239, 250 (Skyline).)

Section 515 does not apply to Liday’s pre-2014 minimum 

wage claim, however. The statute expressly relates to 

determining the hourly rate for a salaried, nonexempt employee 

for purposes of calculating overtime compensation. As we 

have said, Liday was exempt from the hours and days of work 

provision governing overtime under Wage Order 15. Therefore, 

before section 1454 became effective no statute or regulation 

imposed a maximum number of hours Liday could work per week 

or day—nonovertime hours—or specified the number of hours 

that constituted a regular workday or workweek for personal 

attendants. 

The DLSE Manual also makes clear the “regular rate 

of pay” calculation was designed to determine overtime

compensation. First, section 49.1.1 of the Manual explains, 

“overtime is computed based on the regular rate of pay.” (Italics 

added.) And, section 48.1.2 explains, “ ‘Workday’ is defined in 

10 This language was added to section 515 effective January 1, 

2013. (Stats. 2012, ch. 820, § 2.)
17

the [IWC] Orders and Labor Code § 500 for the purpose of 

determining when daily overtime is due.” (Italics added.) 

Section 49.2.1.1 of the Manual, cited by Liday, in turn provides 

the method for computing the “regular rate of pay” for salaried 

workers: “Multiply the monthly remuneration by 12 (months) 

and divide by 52 (weeks) = weekly remuneration. Divide the 

weekly remuneration by the number of legal maximum regular 

hours worked = regular hourly rate.” (Italics added.) That is 

the formula the court used here, but before 2014, there was no 

“legal maximum” number of regular hours that Liday could work, 

rendering that formula inapplicable by the express terms of the 

statute and DLSE’s interpretation of it.

In a colloquy with appellants’ counsel, the trial court agreed

section 515 did not apply to Liday’s pre-2014 wages.

“[Appellants’ counsel:] Labor Code [ ]515(d) doesn’t 

apply because she was not entitled to overtime. And 

the Code itself specifically says that that applies only 

to nonexempt salaried employees. During that period 

of time, she was an exempt employee because she 

was a personal attendant. 

“The Court: I agree.” 

Despite this acknowledgement, the court nevertheless computed 

Liday’s pre-2014 hourly rate based on a maximum 45-hour work 

week, finding the calculation for nonexempt, salaried workers 

“analogous.” But by doing so, the court effectively applied section 

1454’s maximum hours requirement retroactively without legal 

basis.

Based on the plain language of the statute and wage order, 

before 2014 Liday’s $3,000 per month salary ($692.31 per week) 

legally compensated her for whatever total number of hours she 

worked, be it 20, 45, or 80 hours per week. The only limitation 

the law placed on Liday’s salary was that it must compensate her 
18

at least at the minimum wage rate of $8 per hour for every hour 

she worked. Appellants concede they failed to do so and owe 

Liday unpaid wages. But, the law does not require them to pay 

Liday $15.38 per hour because of that failure or retroactively to 

limit Liday’s salary to cover only 45 hours per week.

b. Case law also does not require that Liday’s salary 

cover only regular, nonovertime hours

In support of her argument that the court’s calculation 

was proper, Liday focuses on the Court of Appeal’s holding in 

Hernandez that, “[a]bsent an explicit, mutual wage agreement, 

a fixed salary does not serve to compensate an employee for the 

number of hours worked under statutory overtime requirements.” 

(Hernandez, supra, 199 Cal.App.3d at p. 725, second italics 

added.) This holding from Hernandez is inapplicable to Liday’s 

pre-2014 wage claim. 

There, defendant hired plaintiff to work as a butcher 

for a fixed salary of $300 per week. (Hernandez, supra, 199 

Cal.App.3d at p. 724.) The butcher, who was entitled to overtime, 

testified he worked every day for 13 hours a day during the 

disputed period. (Ibid.) Defendant testified the butcher’s salary 

included overtime wages because the butcher had agreed to 

work every day for nine hours a day—63 hours per week—for 

the minimum hourly wage, and the combined nonovertime and 

overtime wages due for 63 hours was less than $300 a week. 

(Ibid.) The trial court found the butcher had worked some 

overtime, but entered judgment in favor of defendant, finding the 

butcher failed to meet his burden of proof to establish the number 

of overtime hours he had worked. (Id. at p. 725.)

The Court of Appeal reversed, finding the butcher had 

met his burden of proof. (Hernandez, supra, 199 Cal.App.3d at 

p. 725.) The court first found there was no evidence the parties 

had agreed to the butcher’s working hours or hourly rate. (Ibid.) 
19

As a result, it concluded the butcher’s $300 per week 

compensation “must be construed as the payment he received 

for a regular workweek,” not including overtime. (Ibid.) Citing 

section 510, which provides for an eight-hour workday and 

overtime wages for hours worked in excess of eight per day or 

40 per week, the court explained, “[a]bsent an explicit, mutual

wage agreement, a fixed salary does not serve to compensate 

an employee for the number of hours worked under statutory 

overtime requirements”—the passage relied on by Liday. 

(Hernandez, at p. 725.) 

In other words, the butcher’s $300 per week salary 

could not compensate him for hours he worked in excess of the 

statutorily mandated eight hours per day and 40 hours per week. 

He thus was entitled to unpaid overtime wages in addition to his 

salary. (Hernandez, supra, 199 Cal.App.3d at pp. 725-726.) The 

Court of Appeal also directed the trial court to draw “whatever 

reasonable inferences it [could] from the employee’s evidence” 

to determine his overtime hours because the employer had failed 

to keep accurate records of the butcher’s hours. (Id. at p. 728.)

As with section 515, and the corresponding provisions of 

the DLSE Manual, the key difference here is that Liday was not 

subject to any statutory or regulatory overtime requirements like 

the butcher. Her $692.31 per week compensation logically could 

not be presumed to cover only “nonovertime” hours when she 

had no set or maximum hours to exceed.11 The butcher’s weekly 

11 Liday asserts that the trial court “expressly found” Liday’s 

salary “covered only her regular non-overtime hours.” The 

statement of decision cites the quoted passage above from 

Hernandez, but the trial court never found the parties agreed to 

the number of hours Liday would work per day or per week. The 

court made clear it presumed the 45-hour “regular” workweek 
20

salary could compensate him only for working nonovertime 

hours—40 hours per week and eight hours per day under section 

510—because to allow otherwise would circumvent statutory 

overtime requirements. Nothing in Hernandez suggests that 

a salary paid to an employee exempt from overtime cannot 

compensate the employee for hours worked in excess of 

what otherwise would be considered nonovertime hours for 

a nonexempt employee. Such an interpretation of Hernandez

is nonsensical. If an employee is exempt from overtime, there 

can be no “nonovertime” or “overtime” hours. Based on the law 

at the time, appellants could not have anticipated that Liday’s 

$3,000 per month salary would compensate her for nonovertime 

hours only when she was exempt from overtime. 

c. Liday cites no authority to support her contention 

she was exempt from overtime wages, but not 

overtime hours

Liday also seems to contend that as a salaried personal 

attendant, she was exempt from “the separate requirement 

of a premium overtime rate for overtime work,” but was not 

excluded from application of regular, nonovertime work hours.

We cannot agree with Liday’s interpretation of her 

overtime-exempt status. Liday would have us read the Labor 

Code and Wage Order 15 as precluding an overtime-exempt 

personal attendant’s regular workweek from exceeding the 

statutory maximum number of hours specified for nonexempt 

employees. Nothing in the Labor Code or Wage Order 15 

suggests such an interpretation.

applied to calculate Liday’s unpaid minimum wages and did not 

base its decision on any statute or case. 
21

First, the maximum hours requirement logically cannot 

be separated from the premium overtime rate required for hours 

worked beyond the legal maximum. The two requirements go 

hand in hand. Premium overtime pay was instituted to enforce

statutory maximum working hours by obligating employers to 

pay higher hourly rates to employees whose work exceeded those 

daily or weekly limits. (Monzon v. Schaefer Ambulance Service, 

Inc. (1990) 224 Cal.App.3d 16, 37 [premium pay accomplishes 

“IWC’s goal of enforcing maximum hours”]; Skyline, supra, 165 

Cal.App.3d at p. 250 [“Premium pay for overtime is the primary 

device for enforcing limitations on the maximum hours of 

work.”].) Requiring nonovertime hours without requiring 

payment of overtime wages would not achieve this goal.

Liday contends, “Wage Order 15 clearly delineates 

between, on the one hand, regular, non-overtime work hours, and 

on the other hand, overtime hours. The regular, non-overtime 

hours are those up to 9 hours in a workday and 45 hours in a 

workweek, while the overtime hours are those beyond those 

thresholds.” That distinction may be true, but Liday fails to note 

that Wage Order 15 also “clearly” exempts personal attendants 

like Liday from the very provision she cites. That section limits 

both the maximum number of hours a domestic employee may 

work and provides for premium overtime wages should those 

hours be exceeded. (Wage Order 15, subd. 3.) That provision 

expressly does not apply to personal attendants. 

Had the IWC intended the wage order’s hours of work 

limitations to apply to personal attendants without providing 

them with premium wages, it would not have excepted 

application of the entire “hours and days of work” provision 

to personal attendants when it removed the minimum wage 

exemption in 2001. (Compare IWC Order No. 15-2000, subd. 

1(B), supra, with Wage Order 15, subd. 1(B).) But it did.
22

We cannot interpret Wage Order 15 as nonetheless 

intending to apply its limitations on nonovertime hours—without 

premium overtime rates—to salaried12 personal attendants. 

To do so not only would lead to the “absurd consequence[ ]” of 

applying part of the wage order’s overtime requirement to an 

employee explicitly exempt from all of its overtime requirements, 

but also would fail to give effect to Wage Order 15’s explicit 

exemption of personal attendants from that entire requirement—

both premium wages and maximum hours. (Singh v. Superior 

Court, supra, 140 Cal.App.4th at p. 393 [interpretation of wage 

order must not lead to “absurd consequences”]; Gonzalez, supra, 

215 Cal.App.4th at p. 44 [construction of wage order must not 

render part of it “meaningless”]; Brinker, supra, 53 Cal.4th at 

p. 1027 [wage orders “must be given ‘independent effect’ ”].) We 

thus conclude Liday was not subject to any set number of regular, 

nonovertime work hours under Wage Order 15 on the ground she 

received a fixed salary. 

Moreover, the wage order’s minimum wage requirement 

protects a salaried, overtime-exempt employee from the lack of an 

agreed-upon hourly rate: if the salary compensates the employee 

at less than the prevailing minimum wage for each hour the 

employee works—as occurred here—the employee may recover 

the difference. (§ 1194.) With no express restriction on the 

number of hours the employee may be required to work, however, 

no regular rate of pay calculation is mandated by assuming the 

12 Nothing in Wage Order 15 prohibits an employer from 

paying a personal attendant by salary, as long as the employer 

pays the employee the legal minimum wage. (Wage Order 15, 

subd. 4(B) [employer must pay employee the minimum wage 

“whether the remuneration is measured by time, piece, 

commission, or otherwise” (italics added)].)
23

salary covered only the statutory regular, nonovertime hours 

for nonexempt employees. 

The Legislature’s enactment of the DWBR supports our 

analysis. By setting a maximum 45-hour workweek and ninehour workday for personal attendants (§ 1454), the Legislature 

acknowledged, that before January 2014, employers were not 

precluded from requiring personal attendants to work more than 

45 hours per week or nine hours per day at only the minimum 

wage rate. As one commentator noted, “Before the DWBR, 

personal attendants were not entitled to any overtime 

compensation, even if they provided 24-hour, live-in care, seven 

days a week. Personal attendants did not have to receive any 

duty-free meal or rest breaks. Furthermore, unlike many 

other exemptions, such as the executive, administrative, and 

professional exemptions, personal attendants did not have to be 

paid a salary equal to two times the applicable minimum wage 

for full-time work. In other words, an employer could lawfully 

require a personal attendant to work 24 hours a day, six days 

a week and only pay that employee the minimum wage.” 

(Rehwald, Caregiver Care: Current Law Limiting the Amount of 

Time Personal Attendants Spend on Tasks Other than Caregiving 

May Represent Liability Issues for Employers (Nov. 2016) 39 

Los Angeles Lawyer 20, 22.)

The Legislature understood personal attendants were 

“completely exempt” from overtime. (Assem. Com. on Labor 

& Employment, Analysis of Assem. Bill No. 241 (2013-2014 

Reg. Sess.) as amended Mar. 19, 2013, p. 5 (DWBR Analysis) 

[“ ‘Personal attendants’ are completely exempt from the general 

overtime requirements of Wage Order 15. Therefore, under the 

Wage Order, ‘personal attendants’ are only required to be paid 

straight-time for all hours worked, regardless of whether they 

work more than eight hours in a day or 40 hours in a week.”].) 
24

Indeed, the DWBR was introduced specifically to correct the 

inequity of the law’s exclusion of personal attendants from 

overtime protections, while granting those protections to other 

types of domestic workers. (See DWBR Analysis, p. 9.)

Only when Liday became entitled to overtime protections 

in January 2014 did California law require the court to calculate 

Liday’s overtime wages by determining Liday’s $15.38 per hour 

regular rate of pay based on a 45-hour workweek and then 

to apply that rate to the hours she worked in excess of 45 on 

a weekly basis. But before that day, Liday was “completely 

exempt” from overtime. No statutorily mandated “regular hours” 

applied to her, nor, as we discuss, had the parties agreed on a 

maximum number of daily or weekly hours to which her salary 

applied.

4. Armenta does not apply because the parties did not 

agree to an hourly rate higher than the minimum 

wage or to a set number of work hours

Liday also contends appellants’ proposed wage calculation 

—paying Liday the minimum wage of $8 per hour for each hour 

she worked—would average her monthly salary over all the hours 

she worked to effectively compensate her at a lower rate for some 

of the hours she worked, a practice prohibited by California law 

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

314 (Armenta). Liday and the employees in Armenta are not 

similarly situated, however.

In Armenta, the Court of Appeal agreed a company violated 

California’s minimum wage statute, section 1194, when it did not 

pay its employees for “nonproductive” time, such as travel time 

and time spent on paperwork.13 (Armenta, supra, 135 

13 To avoid removal to federal court, the plaintiff employees 

amended their complaint to seek only unpaid minimum wages 
25

Cal.App.4th at pp. 317, 324.) Under the terms of a collective 

bargaining agreement, the company paid its union employees, 

who maintained utility poles, hourly wages higher than the 

minimum wage for “productive time.” (Id. at pp. 316-317.) The 

company argued it had complied with the minimum wage law 

because its employees’ weekly pay resulted in an average hourly 

rate (factoring both paid time and unpaid nonproductive time) 

higher than the applicable minimum wage. (Id. at p. 319.) The 

trial court rejected this averaging method, accepted by federal 

courts, concluding it would permit the employer to “extract 

lengthy work weeks from its employees without paying them 

for all hours worked.” (Id. at pp. 320-321.) 

The Court of Appeal agreed the federal “model of averaging 

all hours worked ‘in any work week’ to compute an employer’s 

minimum wage obligation under California law [was] 

inappropriate” considering California’s “strong public policy in 

favor of full payment of wages for all hours worked.” (Armenta, 

supra, 135 Cal.App.4th at p. 324.) Rather, in California 

“[t]he minimum wage standard applies to each hour worked 

by [employees] for which they were not paid.” (Ibid.)

The court reached its holding after examining sections 221, 

222, and 223. (Armenta, supra, 135 Cal.App.4th at pp. 323-324.) 

Section 221 prohibits an employer from collecting from an 

employee any part of the wages the employer has paid to the 

employee. Section 222 prohibits employers, in the case of a 

collective bargaining wage agreement, from withholding from 

employees “any part of the wage agreed upon.” And, section 223 

under section 1194, striking all references to unpaid overtime 

wages. (Armenta, supra, 135 Cal.App.4th at p. 318.)
26

prohibits employers from “secretly pay[ing] a lower wage while 

purporting to pay the wage designated by statute or by contract.” 

The court concluded these sections “articulate the 

princip[le] that all hours must be paid at the statutory or agreed 

rate and no part of this rate may be used as a credit against a 

minimum wage obligation.” (Armenta, supra, 135 Cal.App.4th at 

p. 323.) Thus, the trial court had determined correctly that the 

employer must pay its employees the minimum wage for each of 

the hours they had not been paid despite having paid them a rate 

“far in excess of the minimum wage” for their “productive” hours. 

(Id. at pp. 319, 324.) Adopting the averaging method proposed 

by the employer would “contravene[ ]” the Labor Code and 

“effectively reduce[ ] [employees’] contractual hourly rate.” 

(Id. at p. 323.)

Liday contends the same principle applies here—to 

average her salary over all the hours she worked would result in 

“stretch[ing]” her salary to cover hours appellants argued at trial 

were noncompensable. We disagree. 

Here, no collective bargaining agreement is at issue, and 

the court found the parties did not agree to an hourly rate, much 

less an hourly rate higher than the minimum wage as the parties 

had in Armenta. Appellants thus are not trying to average an 

agreed higher wage to cover compensated and noncompensated 

hours. In Armenta, the averaging method would have resulted 

in taking a portion of the employees’ agreed higher rate to cover 

hours for which they had not been paid at all. They would not 

have received the wages due them under their collective 

bargaining agreement. 

Appellants agreed to pay Liday $3,000 per month, but there 

is no evidence—nor did the court explicitly find—the parties 

agreed this salary would compensate Liday for a 45-hour 

workweek or any other specific number of work hours that could 
27

compute to an agreed hourly rate higher than $8 per hour.14 

Liday argues appellants now are attempting to include work 

hours they originally did not treat as covered by her $3,000 per 

month salary—“ ‘downtime between 9:00 a.m. and 2:00 p.m. and 

. . . sleep time between 10:00 p.m. and 5:45 a.m.’ ” But, the fact 

remains that Liday was exempt from overtime laws and the 

parties never agreed she would work a specific number of hours 

per day or week.15

Paying Liday the $8 minimum hourly wage for each hour 

the court found she worked, therefore, would not “effectively 

reduce[ ]” her contractual hourly rate as in Armenta. Nor would 

doing so violate section 223 by paying her a lower wage than 

designated by statute or contract. The parties may not have 

14 As we have described, there was testimony the parties 

discussed Liday working six days per week when she was hired 

in 2002 (and made less), but she then began to work seven days 

per week with only a few weekends off per year. The parties 

never discussed her working hours or hourly rate, however. 

15 In any event, Liday’s argument does not support her 

implied conclusion that excluding this “downtime” from her 

salary would result in an agreed hourly rate higher than the 

minimum wage. Excluding the 7.75 hours of sleep time each day 

and the five hours of downtime during the weekdays (when the 

children were at school), results in a total of 88.75 work hours for 

a seven-day week (11.25 hours for five days and 16.25 hours for

two days). Based on her $692.31 weekly salary, 88.75 hours of 

work results in an hourly rate of $7.80, which is less, not more, 

than the minimum wage. Liday did take a weekend off some 

months, but she also was paid less during those months. In any 

event, even if the math resulted in an hourly wage higher than 

$8 per hour for some weeks, the court concluded the parties 

did not agree to an hourly rate and no one testified Liday was 

expected to work only 45 hours per week. 
28

agreed to the specific hourly rate of $8 per hour, as Liday notes, 

but as an overtime-exempt employee, the law required only that 

appellants pay her the statutory minimum wage of $8 per hour 

for each hour she worked, not $15.38 per hour. Thus, calculating 

appellants’ minimum wage obligation by multiplying the number 

of hours the court found Liday worked by the $8 per hour legal 

minimum wage and then deducting the amount she received16

will not result in paying Liday less than the statutory or 

contractual rate, crediting part of that rate against appellants’ 

obligation, or extracting longer hours from Liday than the law 

allowed at the time—the concerns expressed in Armenta.

5. Conclusion

No one contests the trial court’s categorization of Liday as a 

personal attendant. The trial court and Liday acknowledged she 

was exempt from overtime before January 1, 2014. But instead 

of applying the $8 per hour minimum wage to each hour Liday 

worked, the court calculated her rate of pay based on the formula 

used to determine payment of overtime wages for nonexempt 

employees. As a personal attendant, Liday was exempt from 

overtime as a matter of law—no statute or wage order limited the 

number of hours her salary could cover. Payment of at least the 

minimum wage for each hour she worked was the only limitation. 

16 The parties discuss the math in terms of dividing Liday’s 

weekly salary by the total number of hours she worked 

(appellants) or 45 hours (Liday) to determine the amount of 

minimum wage she was underpaid. We find it less cumbersome 

to describe appellants’ proposed calculation as multiplying the 

total number of hours Liday worked by the $8 minimum wage 

to determine what she should have been paid. The result is the 

same.
29

Liday argues section 1194 does not require the court to 

default to the lowest allowable amount of minimum wage fixed 

by the IWC. But section 1194 does not entitle Liday to an hourly 

wage higher than the minimum wage when the parties did 

not agree to it. Nor does it allow the court to impose a 45-hour 

workweek on an overtime-exempt employee when the parties 

did not agree her salary would pay for a certain number of work 

hours. While it was proper for the court to determine Liday’s 

regular rate of pay based on a 45-hour workweek for the hours 

she worked beginning January 1, 2014, the law in effect before 

that time did not require appellants to limit the salary they paid 

Liday to cover just 45 hours of work per week. 

As there was no basis in law or contract for the court to 

presume Liday’s salary covered a 45-hour workweek and require 

appellants to pay her $15.38 for hours she worked in excess of 

45 per week, we reverse the court’s judgment with respect to 

Liday’s second and fourth causes of action17 for unpaid wages and 

restitution due from April 2010 through December 2013. Based 

on an $8 per hour rate and the court’s uncontested finding that 

Liday worked a total of 25,962 hours from April 2010 through 

December 2013, Liday was entitled to total compensation of 

$207,696.00 for that period. Because appellants already paid 

her $133,615.83, she is entitled to an award of $74,080.17 in 

combined restitution and unpaid wages for that period.

DISPOSITION

The judgment is reversed and remanded as to Liday’s 

second and fourth causes of action with instructions to the trial 

court to recalculate the amount of unpaid wages due Liday from 

April 2010 through December 31, 2013 (as unpaid wages from 

17 We refer to Liday’s causes of action as the court numbered 

them in its judgment.
30

2011 to 2013 and restitution from 2010 to 2013) by applying an 

$8 per hour wage rate to all hours the trial court found Liday

worked during that period. The trial court also is to hold further 

proceedings to redetermine the prejudgment interest owed on 

the recalculated unpaid wages. 

Appellants are to recover their costs on appeal.

CERTIFIED FOR PUBLICATION

EGERTON, J.

We concur:

LAVIN, Acting P.J.

HANASONO, J.*

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

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

Constitution.