Filed 8/31/17
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FOUR


KURT STOETZL et al.,
        Plaintiffs and Appellants,
                                                  A142832
v.
STATE OF CALIFORNIA et al.,                       (San Francisco County
                                                  Super. Ct. No. CJC11004661)
        Defendants and Respondents.




        Plaintiffs are current and former correctional peace officers who work or worked
at various state correctional facilities. They brought these coordinated class actions
alleging they were improperly denied pay for time they spent under their employer’s
control before and after their work shifts. Ruling that plaintiffs’ entitlement to overtime
pay is controlled by federal, rather than California, law, the trial court entered judgment
for defendants.1 We shall reverse the judgment in part as to the subclass of unrepresented
employees and affirm as to the subclass of represented employees.




        1
         The three coordinated actions are Stoetzl et al. v. State of California, CGC-08-
474096, filed in the San Francisco County Superior Court (the Stoetzl action); Shaw et al.
v. State of California, 10C0081, filed in the Kings County Superior Court (the Shaw
action); and Kuhn et al. v. State of California, BC450446, filed in the Los Angeles
County Superior Court (the Kuhn action). Defendants are the State of California, the
California Department of Corrections and Rehabilitation (CDCR), the California
Department of Mental Health, and the California Department of Personnel
Administration (DPA). We shall refer to defendants collectively as “the State.”

                                              1
                                      I. BACKGROUND
   A. The Actions
       Plaintiffs alleged they were not paid for all the time they spent at the correctional
institutions under defendants’ control. Specifically, they were expected to sign in and
sign out on time sheets that reflected only their officially assigned work day. Plaintiffs
were required to be at their assigned posts at the beginning of their official shifts.
However, the sign-in and sign-out locations were often significantly removed from
plaintiffs’ actual work posts, and they were not compensated for the time it took to travel
from those locations to their work posts after signing in or to return to those locations to
sign out at the end of a shift. Second, plaintiffs alleged that they were required to spend
time before checking in and after checking out on such activities as being briefed before a
shift, briefing relief staff at work posts after a shift, checking out and checking in
mandated safety equipment, putting on and removing mandated safety equipment,
waiting in lines, submitting to searches at security checkpoints, and taking inventories of
weapons, ammunition, and other equipment. Plaintiffs were either not allowed to or were
discouraged from adjusting their time logs to reflect these additional tasks. Plaintiffs
alleged causes of action for failure to pay contractual overtime (Lab. Code,2 §§ 222, 223)
(first cause of action), failure to pay the California minimum wage (§§ 1182.11, 1182.12,
1194; 8 Cal. Code Regs. § 11000 et seq.) (second cause of action), failure to keep
accurate records of hours worked (§ 1174) (third cause of action), and failure to pay
overtime in breach of common law contractual obligations (fourth cause of action). They
sought unpaid overtime wages, unpaid California minimum wages, liquidated damages,
and injunctive relief.
       In the Stoetzl action, the trial court certified a class of “[a]ll persons who are or
who have been employed as Correctional Officers, Correctional Sergeants, Correctional
Lieutenants, Medical Technical Assistants, Senior Medical Technical Assistants,
Correctional Counselors I, Correctional Counselors II, Youth Correctional Officers,

       2
         All undesignated statutory references are to the Labor Code. All rule references
are to the California Rules of Court.

                                               2
and/or Youth Correctional Counselors to work at adult and/or youth correctional
institutions within the [CDCR] in the period commencing April 9, 2005 until the notice
of pendency of this class action is given.” The Stoetzl, Shaw, and Kuhn actions were later
coordinated. (Code Civ. Proc., § 404 et seq.; rule 3.501 et seq.) The court granted class
certification in the Shaw and Kuhn actions and, by stipulation, certified two subclasses
for the three coordinated cases, one of unrepresented supervisory employees (consisting
of Senior Medical Technical Assistants, some subclassifications of Correctional Officer
II’s, Correctional Sergeants, and Correctional Lieutenants) and one of represented
employees (consisting of the remaining job classifications).3
   B. Judgment on the Pleadings
       The State moved for judgment on the pleadings. The trial court granted the
motion without leave to amend as to the causes of action for failure to pay overtime in
violation of sections 222 and 223 and failure to keep accurate records of hours worked,
and denied the motion as to the remaining causes of action.
   C. Trial
       1. Threshold Legal Issues
       The parties stipulated that the trial would be bifurcated into multiple phases. In
Phase I, several threshold legal issues would be tried to the court. The issues were:
“Compensability [¶] (a) Whether the California state law standard of compensability
(the ‘control standard’) or the [federal Fair Labor Standards Act of 1938, 29 U.S.C. § 201
et seq. (FLSA)] standard of compensability (‘first principal activity of the day’)
establishes the standard for determining plaintiffs’ compensable hours worked; as to
Represented Employees: During the relevant time period, did the parties agree the FLSA
would constitute the controlling legal standard for determining represented employees’
compensable hours worked? [¶] Minimum Wage [¶] (b) Whether Labor Code sections
1182.11, 1182.12, 1194 and 8 CCR section 11000 et seq. and/or the Wage Orders apply

       3
        Employees in the job classification of Correctional Counselor II (Supervisor)
were later excluded from the class of unrepresented employees and dismissed from the
action.

                                             3
to the state employer for purposes of establishing the minimum wage applicable to
plaintiffs. [¶] (c) Represented Employees: During the relevant time period, did the
parties contractually agree to apply the federal minimum wage instead of the California
minimum wage and, if so, is such an agreement enforceable? [¶] Breach of Contract
Claims [¶] (d) Is there any legal prohibition, including but not limited to, the Ralph C.
Dills Act (Govt. Code § 3512, et seq.) for represented employees and the Bill of Rights
for State Excluded Employees (Govt. Code § 3525, et seq.) for unrepresented employees,
against stating a claim for breach of common law contract regarding the terms and
conditions of employment against the state, or against an employee receiving overtime
for hours worked beyond their regular work schedules? [¶] (e) For represented
employees, what contractually enforceable overtime policies existed when (1) the 2001-
2006 MOU was in effect, including by operation of Government Code § 3517.8 until
September 18, 2007, (2) the State’s Implemented Terms were in effect, and (3) once the
2011-2013 MOU took effect? [¶] (f) Assuming represented employees can state a
common law contract claim, were represented employees required to exhaust contractual
grievance procedures and/or other administrative remedies prior to bringing a civil breach
of contract action? [¶] (g) Assuming unrepresented employees can state a common law
contract claim, what contractually enforceable overtime policies existed during the class
period?”
       2. Stipulations and Evidence at Trial4
              a. Represented Employees
       The California Correctional Peace Officers’ Association (CCPOA) is the exclusive
collective bargaining representative for members of the subclass of represented
employees. Labor relations between CCPOA and the State are governed by the Ralph C.
Dills Act (Gov. Code, § 3512 et seq.) (the Dills Act), which provides for collective
bargaining over wages, hours, and other terms and conditions of employment. The
Department of Human Resources (CalHR, formerly known as the Department of

       4
         The parties stipulated to certain facts and legal conclusions for purposes of the
Phase I trial, and additional evidence was admitted at trial.

                                              4
Personnel Administration or DPA) represents the Governor of California as the state
employer for purposes of collective bargaining with the CCPOA. The Dills Act allows
parties to agree to a memorandum of understanding (MOU) to supersede certain
provisions of law. (Gov. Code, § 3517.61.) After the parties reach an agreement, they
submit a joint MOU to the Legislature, when appropriate, for approval. (Gov. Code,
§ 3517.5.)
       The FLSA establishes overtime pay requirements for hours worked in excess of 40
per week. (29 U.S.C. § 207(a).) An exemption from this requirement exists for peace
officers: An employer may establish a regular work period of up to 171 hours in a 28-
day period, and must pay overtime only after the employee works more than 171 hours in
the work period. This is known as the “7k Exemption.” (See 29 U.S.C. § 207(k); see
also 29 C.F.R. §§ 553.201, 553.230.)
       The State, through CalHR, and CCPOA have negotiated multiple MOU’s since
1982 on behalf of the represented plaintiffs’ collective bargaining unit, State Bargaining
Unit 6. Before 1998, the MOU’s generally provided for a 40-hour workweek. The MOU
in effect from July 1, 1998 to June 30, 1999 contained a section entitled “7k Exemption,”
which began, “CCPOA and the State agree that the employees listed below are working
under the provisions of Section 207k of the Fair Labor Standards Act (FLSA) and the
parties acknowledge that the employer is declaring a specific exemption for these
employees under the provisions specified herein.” It provided for a “7k schedule” of 168
hours in a 28-day work period for certain job classifications and defined “overtime” as
hours worked in excess of 168 hours. For Correctional Officers, Medical Technical
Assistants, Youth Correctional Officers, and Youth Correctional Counselors, the 168
compensated hours consisted of 160 hours of regular posted duty, four hours for pre- and
post-work activities, and four hours for training. Section 11.12 of the 1998-1999 MOU
stated that “CCPOA agrees that generally this is sufficient time for all pre and post work
activities during each work period, and that the compensation allotted for these activities
under this provision is full compensation for all of these activities,” that “[t]he State and
CCPOA agree that they have made a good faith attempt to comply with all requirements


                                              5
of the FLSA in negotiating this provision. If any court of competent jurisdiction declares
that any provision or application of this Agreement is not in conformance with the FLSA,
the parties agree to Meet and Confer immediately . . . ,” and that “CCPOA agrees that
neither it nor any of its employees acting on their own behalf or in conjunction with other
law firms shall bring any suit in court challenging the validity of this provision under the
FLSA.”
       The State’s chief negotiator for the 1998-1999 MOU, David Gilb, testified that the
7k schedule was designed to address the question of whether employees’ work started
when they picked up their equipment or when they reported to their posts. During
negotiations, he defined pre- and post-work activities as work that began when
employees picked up their tools in the central control area. The work could include
walking from the control area to the post and participating in a brief pre-shift meeting.
The State took the position that under the FLSA, it was not obligated to compensate
employees for time they spent between entering the institution and picking up their
equipment or the time after the equipment was returned, and CCPOA’s negotiators
understood this was the State’s position. During the course of the negotiations, there was
no discussion of whether the State would have to comply with California wage and hour
laws. A member of the CCPOA’s negotiating team, David Lewis, testified that he did not
believe California law applied to the 7k schedule and that he did not raise the subject of
California law because the parties were negotiating under federal law. The Legislature
approved the 1998-1999 MOU, and it was signed by the Governor and chaptered into law
by the Secretary of State. (Stats. 1998, ch. 820, § 2, p. 5135.)
       The MOU in effect from July 1, 1999 to July 2, 2001 continued the relevant
provisions of the 1998-1999 MOU. CCPOA’s negotiators understood that when a
provision was “rolled over” from one MOU to the next, the bargaining history was rolled
over as well. This MOU was approved by the Legislature, signed by the Governor, and
chaptered into law. (Stats. 1999, ch. 778, § 6(b), p. 5613.)
       The MOU in effect from July 1, 2001 to July 2, 2006 provided for a 7k schedule
of 164 compensated hours in a 28-day work period, four of which were for pre- and post-


                                              6
work activities for represented Correctional Officers, Medical Technical Assistants,
Youth Correctional Officers, and Youth Correctional Counselors. Correctional
Counselor I and Correctional Counselor II Specialists also had a 164-hour schedule.
“Overtime” was defined as any hours worked in excess of that schedule, and required pay
at one and a half times the regular rate of pay. The MOU provided, “CCPOA agrees that
generally this is sufficient time for all pre and post work activities during each work
period, and that the compensation allotted for these activities under this provision is full
compensation for all of these activities. This section shall not result in changes to the
shift start/stop times.” It included provisions identical to those in the earlier MOU’s
reciting that the parties had made a good faith attempt to comply with the FLSA and that
CCPOA would not bring an action challenging the validity of the 7k schedule under the
FLSA. Like its predecessors, the 2001-2006 MOU was approved by the Legislature,
signed by the Governor, and chaptered into law. (Stats. 2002, ch. 1, § 2, p. 3.)
       CCPOA and the State continued to give effect to these provisions from July 2,
2006 to September 18, 2007, as the parties negotiated unsuccessfully for a new MOU to
succeed the 2001-2006 MOU. (See Gov. Code, § 3517.8, subd. (a).) On September 18,
2007, the State imposed on CCPOA and the represented employees the terms of its
“last[,] best[,] and final offer,” without substantive modification to the provisions
discussed above. (See Gov. Code, § 3517.8, subd. (b).) The Legislature did not approve
or ratify these terms.
       The State and CCPOA entered into a new MOU on May 16, 2011, which was set
to expire July 2, 2013. The 2011-2013 MOU recited that the parties were working under
the provisions of section 207(k) of the FLSA (29 U.S.C. § 207(k)), continued the 164-
hour, 28-day work period for represented employees, consisting of 160 hours for posted
duty and four hours for pre- and post-work activities, and defined “overtime” as any
hours worked in excess of that schedule. It did not include the language found in the
earlier MOU’s providing that four hours constituted sufficient compensation for pre- and
post-work activities. In a side letter, the parties agreed that no changes to the MOU’s
language would have a prejudicial effect on either side’s arguments in the Stoetzl action.


                                              7
       At all times relevant to this action, it has been the State’s practice to pay
represented employees overtime compensation, at one and a half times the regular rate of
pay, for all reported time worked in excess of 164 hours in a 28-day work period.
              b. Unrepresented Employees
       Labor relations between the unrepresented employees are governed by the Bill of
Rights for State Excluded Employees (Gov. Code, § 3525 et seq.), which does not permit
collective bargaining. No MOU governs their hours, wages, or other terms and
conditions of employment. Their regular working schedule was 40 hours of regular
compensated duty during each work week. Correctional Sergeants, Correctional
Lieutenants, and Senior Medical Technical Assistants were paid overtime at one and a
half times the regular rate of pay for reported time in excess of that. Unrepresented
employees did not receive the four hours of block pay for pre- and post-work activities
that some represented employees received.
       CalHR used the California Pay Scale Manual to document the salaries for state
employees. The Pay Scale Manual established “Work Week Groups” under the FLSA.5
The unrepresented workers are members of Work Week Group 2. The manual provided:
“Overtime for employees in classes not eligible for exemption under Section 7K of the
FLSA is defined as all hours worked in excess of 40 hours in a period of 168 hours or
seven consecutive 24-hour periods.” Under the heading, “Hours Worked,” it stated, “For
the purpose of identifying hours worked under the provisions of the FLSA, only the time




       5
         Government Code section 19843, subdivision (a) provides: “For each class or
position for which a monthly or annual salary range is established by the department [i.e.,
CalHR, see Gov. Code, § 19815, subd. (a)], the department shall establish and adjust
workweek groups and shall assign each class or position to a workweek group. The
department, after considering the needs of the state service and prevailing overtime
compensation practices, may establish workweek groups of different lengths or of the
same length but requiring different methods of recognizing or providing compensation
for overtime. The department may also provide for the payment of overtime in
designated classes for work performed after the normal scheduled workday or normal
scheduled workweek.”

                                              8
spent which is controlled or required by the State and pursued for the benefit of the State
need be counted. . . .”
       Under the heading, “Determination of Coverage under FLSA,” the Pay Scale
Manual provided: “The provisions of Work Week Group 2 are made applicable to all
classes which are determined by the Director of the Department of Personnel
Administration to include positions subject to the FLSA.” The DPA had determined that
all the job classifications included in the Unrepresented Employees subclass were subject
to the FLSA.
       3. Trial Court’s Ruling
       The trial court ruled in favor of the State on all issues at the Phase I trial. As to
represented employees, it concluded the legal standard for determining what constituted
compensable hours worked was the “first principal activity” test of the FLSA rather than
California’s “control test.” It based this conclusion on the language of the MOU’s, which
it found “unambiguously establishes that the parties agreed that the FLSA’s first principal
activity test is the controlling legal standard”; evidence that the parties understood they
were negotiating under federal law and agreed to adopt the FLSA’s test; and the fact that
the MOU’s were approved by the Legislature and chaptered into law. As to the
unrepresented employees, the trial court concluded CalHR had acted within its
legislatively delegated authority in applying the FLSA as the standard for measuring
compensable hours. As to plaintiffs’ claim for common law breach of contract, the court
ruled that this claim was subject to the general rule that the terms and conditions of public
employment are controlled by statute and ordinance, rather than contract, and that, in any
case, plaintiffs had not established the existence of an agreement between the State and
plaintiffs to pay overtime.
                                       II. DISCUSSION
   A. Statutory and Regulatory Scheme Governing California Minimum Wage
       “The IWC is a five-member appointive board initially established by the
Legislature in 1913. For the first 60 years of its existence, the IWC’s mission was to
regulate the wages, hours and conditions of employment of women and children


                                               9
employed in this state, in furtherance of such employees’ ‘health and welfare.’ To this
end, the commission—beginning in 1916—promulgated a series of industry- and
occupation-wide ‘wage orders,’ prescribing various minimum requirements with respect
to wages, hours and working conditions to protect the health and welfare of women and
child laborers. . . . [¶] . . . [T]he California Legislature in 1972 and 1973 amended the
applicable provisions of the Labor Code to authorize the IWC to establish minimum
wages, maximum hours and standard conditions of employment for all employees in the
state, men as well as women. [Citations.] The constitutionality of this legislative
expansion of the IWC’s jurisdiction to all California workers is explicitly confirmed by
article XIV section 1 of the California Constitution which declares: ‘The Legislature
may provide for minimum wages and for the general welfare of employees and for those
purposes may confer on a commission legislative, executive and judicial powers.”
(Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 700-701, fn. omitted.)
“Today 18 wage orders are in effect, 16 covering specific industries and occupations, one
covering all employees not covered by an industry or occupation order, and a general
minimum wage order amending all others to conform to the amount of the minimum
wage currently set by statute.” (Martinez v. Combs (2010) 49 Cal.4th 35, 57, fns. omitted
(Martinez).)
       “[T]he IWC’s wage orders are entitled to ‘extraordinary deference, both in
upholding their validity and in enforcing their specific terms.’ [Citation.] . . . [¶] The
IWC’s wage orders are to be accorded the same dignity as statutes. They are
‘presumptively valid’ legislative regulations of the employment relationship [citation],
regulations that must be given ‘independent effect’ separate and apart from any statutory
enactments [citation]. To the extent a wage order and a statute overlap, we will seek to
harmonize them, as we would with any two statutes. [Citation.]” (Brinker Restaurant
Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1027 (Brinker).)
       Under section 1197, “ ‘[t]he minimum wage for employees fixed by the
commission is the minimum wage to be paid to employees, and the payment of a [lower]
wage than the minimum so fixed is unlawful.’ Under section 1194, ‘any employee


                                             10
receiving less than the legal minimum wage . . . applicable to the employee is entitled to
recover in a civil action the unpaid balance of the full amount of this minimum wage . . .’
(id., subd. (a)). Accordingly, today, as under the 1913 act, specific employers and
employees become subject to the minimum wage only under the terms of an applicable
wage order, and an employee who sues to recover unpaid minimum wages actually and
necessarily sues to enforce the wage order.” (Martinez, supra, 49 Cal.4th at pp. 56-57.)
       California’s general minimum wage order (Cal. Code Regs., tit. 8, § 11000, Order
No. MW-2001) requires employers to pay wages of at least the minimum wage for “all
hours worked.” Wage Order 4-2001 (Cal. Code Regs., tit. 8, § 11040) (Wage Order 4),
applicable to those employed in professional, technical, clerical, mechanical, and similar
occupations,6 likewise requires an employer to pay each employee wages of at least the
minimum wage for “all hours worked.” It defines “hours worked” as “the time during
which an employee is subject to the control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not required to do so. Within the
health care industry, the term ‘hours worked’ means the time during which an employee
is suffered or permitted to work for the employer, whether or not required to do so, as
interpreted in accordance with the provisions of the Fair Labor Standards Act.” (Id.,
subds. (2)(K), (4)(A).)
   B. Standard of Review
       “We independently review the construction of statutes [citation] and begin with
the text. If it ‘is clear and unambiguous our inquiry ends.’ [Citation.] Wage and hours
laws are ‘to be construed so as to promote employee protection.’ [Citations.] These
principles apply equally to the construction of wage orders. [Citation.]” (Mendiola v.
CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 840 (Mendiola).) Where the relevant
facts are not in dispute, we face a question of law and are not bound by the trial court’s
findings. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Mendiola, 60 Cal.4th at p.
840.) When factual findings are challenged on appeal, we review the findings for

       6
       There is no dispute that plaintiffs’ job classifications fall within the ambit of
wage order 4.

                                             11
substantial evidence, viewing the evidence in the light most favorable to the prevailing
party, and upholding the findings if the record contains any substantial evidence,
contradicted or uncontradicted, to support them. (Bickel v. City of Piedmont (1997) 16
Cal.4th 1040, 1053.)
   C. Failure to Pay Minimum Wage
       Plaintiffs contend the State violated California’s minimum wage law by failing to
pay them for all hours they worked, specifically, for uncompensated pre- and post-work
activity.7
       1. Represented Employees
       The Dills Act requires the State to meet and confer in good faith with
representatives of recognized employee organizations regarding wages, hours, and other
terms and conditions of employment. (Gov. Code, § 3517.) If they reach agreement,
they must prepare an MOU to present to the Legislature for approval, where appropriate.
(Gov. Code, § 3517.5.) “The circumstances are ‘appropriate’ ‘[i]f any provision of the
memorandum of understanding requires the expenditure of funds . . .’ or if ‘legislative
action to permit its implementation’ is required.” (Service Employees Internat. Union,
Local 1000 v. Brown (2011) 197 Cal.App.4th 252, 263, fn. 6; see Gov. Code, § 3517.61.)
Under this statutory scheme, “ ‘virtually all salary agreements are subject to prior
legislative approval. [¶] The act further provides that, except with respect to a number of
specific statutes which the Legislature has expressly determined may be superseded by a
memorandum of understanding, any provision of a memorandum of understanding in
conflict with a statutory mandate shall not be effective unless approved by the
Legislature.’ ” (Department of Personnel Administration v. Superior Court (1992)
5 Cal.App.4th 155, 181 [citing Gov. Code, § 3517.6]; see also White v. Davis (2003) 30
Cal.4th 528, 572 (White) [provision of MOU embodying a salary agreement “obviously”


       7
         This includes the time spent travelling between their sign-in and sign-out
locations and their work posts, briefing and being briefed, checking equipment in and out,
putting on and removing safety equipment, submitting to searches, and taking inventories
of equipment.

                                             12
requires expenditure of funds].) The MOU then governs the terms and conditions of
employment. (Gov. Code, § 3517.61; Professional Engineers in California Government
v. Schwarzenegger (2010) 50 Cal.4th 989, 1040 [“[O]nce approved by the
Legislature[,] . . . [the MOU] governs the wages and hours of the state employees
covered by the MOU”].)
       Under the federal Portal-to-Portal Act (29 U.S.C. § 251 et seq.), an employer is
not subject to liability under the FLSA for failure to pay an employee for “walking,
riding, or traveling to and from the actual place of performance of the principal activity or
activities which such employee is employed to perform” or “activities which are
preliminary to or postliminary to said principal activity or activities, [¶] which occur
either prior to the time on any particular workday at which such employee commences, or
subsequent to the time on any particular workday at which he ceases, such principal
activity or activities.” (29 U.S.C. § 254(a).) Title 29, part 553.221(a) of the Code of
Federal Regulations provides: “The general rules on compensable hours of work are set
forth in 29 CFR part 785 which is applicable to employees for whom the 7(k) exemption
is claimed.” And Title 29, part 553.221(b) of the Code of Federal Regulations, which is
contained in Part 785, entitled “Hours Worked,” provides that the Portal-to-Portal Act
eliminates from the working day certain “ ‘preliminary’ and ‘postliminary’ activities . . .
that are not made compensable by contract, custom, or practice,” and that, “[w]ith respect
to time spent in any ‘preliminary’ or ‘postliminary’ activity compensable by contract,
custom, or practice, the Portal-to-Portal Act requires that such time must also be counted
for purposes of the Fair Labor Standards Act. . . . [O]nly the amount of time allowed by
the contract or under the custom or practice is required to be counted. If, for example,
the time allowed is 15 minutes but the activity takes 25 minutes, the time to be added to
other working time would be limited to 15 minutes.” (Italics added.)
       California law, as embodied in various wage orders, including Wage Order 4,
applies a broader standard, requiring compensation when an employee is subject to the
control of an employer. (Mendiola, supra, 60 Cal.4th at pp. 839-840; Morillion v. Royal
Packing Co. (2000) 22 Cal.4th 575, 578-579, 588-594 (Morillion).) Plaintiffs contend


                                             13
they are subject to California’s broader rule, not the more restrictive federal rule, and that
they are entitled to compensation for the time they spent subject to defendants’ control
between signing in and beginning their work shifts and between the end of their work
shifts and when signing out.8
       A necessary premise to plaintiffs’ argument is that public employees are governed
by California wage and hour laws. For this proposition, they rely upon Guerrero v.
Superior Court (2013) 213 Cal.App.4th 912 (Guerrero) and Sheppard v. North Orange
County Regional Occupational Program (2010) 191 Cal.App.4th 289 (Sheppard). The
court in Guerrero concluded that public agencies were not exempt from the provisions of
Wage Order No. 15-2001, which applied to persons employed in household occupations.
(Guerrero, 213 Cal.App.4th at p. 946, fn. 26.) The court noted that 14 of the 17 industry,
occupation, and miscellaneous wage orders expressly exempted public employees from
their provisions and, because Wage Order No. 15-2001 did not contain language
exempting public agencies or political subdivisions from its coverage, concluded that the
IWC did not intend to exempt such political entities from its coverage. (Id. at pp. 954-
955.) The court relied on Sheppard, which construed Wage Order 4. (Id. at p. 953.) In
Sheppard, a threshold question was whether the employee of a school district was
covered by the minimum wage section of Wage Order 4. The court reviewed the
introductory language of the wage order, which provided that except for specific
sections—including the section on minimum wage—the order did not apply to employees
of the state or political subdivisions. The court therefore concluded the order should be
interpreted, “by its terms, to impose the minimum wage provision as to all employees in
the occupations described therein, including employees directly employed by the state or



       8
         “It is settled that the FLSA does not preempt state regulation of wages, hours,
and working conditions. [Citations.]” (California Correctional Peace Officers Assn. v.
State of California (2010) 189 Cal.App.4th 849, 861.) As our high court has explained,
“state law may provide employees greater protection than the FLSA.” (Morillion, 22
Cal.4th at p. 592.)


                                              14
any political subdivision of the state.” (Sheppard, at pp. 300-301.)9 Plaintiffs’ premise,
therefore, is correct as far as it goes.
       Plaintiffs also argue, however, that the protections of California minimum wage
law may never be “waived.” (§§ 1194, 1197; Hoover v. American Income Life Ins. Co.
(2012) 206 Cal.App.4th 1193, 1208 [rights accorded by section 1194 “may not be subject
to negotiation or waiver”]; see also Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314,
324 (Armenta) [“A review of our labor statutes reveals a clear legislative intent to protect
the minimum wage rights of California employees to a greater extent than federally. . . .
[¶] . . . California’s labor statutes reflect a strong public policy in favor of full payment of
wages for all hours worked”].) Any agreement to bargain away that protection, they
contend, was void, and the Legislature could not ratify it. Therefore, according to
plaintiffs, they are entitled to the benefit of the “control” test of Wage Order 4.
       The flaw in plaintiffs’ argument is that the MOU’s were not only negotiated by
CCPOA and the State, but they were also approved by the Legislature, signed by the
Governor, and chaptered into law. They are thus not simply agreements between the
parties, but laws specifically governing the terms and conditions of plaintiffs’
employment. And, it is well established, “the more specific provision [citation] takes
precedence over the more general one [citation]. [Citations.] To the extent a specific
statute is inconsistent with a general statute potentially covering the same subject matter,
the specific statute must be read as an exception to the more general statute. [Citations.]”
(Salazar v. Eastin (1995) 9 Cal.4th 836, 857.) It is clear to us that the MOU’s are more
specific than the wage orders of general application promulgated by the IWC.
       The fact that the MOU was approved by the Legislature and enacted into law
distinguishes this case from Grier v. Alameda-Contra Costa Transit Dist. (1976) 55
Cal.App.3d 325 (Grier), upon which plaintiffs rely. The plaintiff bus drivers and

       9
           Sheppard also explained that Wage Order 4’s predecessor, Wage Order 4-2000,
exempted public employers more broadly, providing: “ ‘The provisions of this Order
shall not apply to employees directly employed by the State or any county, incorporated
city or town or other municipal corporation, or to outside salespersons.’ (Cal. Code Regs,
tit. 8, § 11040, former subd. 1(B).)” (Sheppard, supra, 191 Cal.App.4th at p. 300, fn. 7.)

                                              15
defendant transit district in Grier had negotiated a collective bargaining agreement
providing that drivers who were late for work without a satisfactory excuse would serve
“penalty point” duty under which they would wait in the dispatching area, without pay,
until released for the day or assigned to a run. (Id. at p. 329.) The trial court concluded
the transit district’s labor relations were governed only by the Transit District Law
applicable to the counties of Alameda and Contra Costa, which empowered the transit
district to administer a personnel system adopted by the board of the district and to
negotiate with a collective bargaining unit regarding wages, hours, and working
conditions. (Id. at pp. 331-332; Pub. Util. Code, § 24501 et seq.) This division of the
First Appellate District disagreed. While statutes governing other transit districts
contained language that the districts’ bargaining powers were not “limited or restricted by
the provisions of . . . other laws or statutes” (Grier, 55 Cal.App.3d at p. 332, italics
omitted), the Legislature omitted this language from the provisions governing the
Alameda-Contra Costa County Transit District. The court therefore concluded the
Legislature did not intend the district’s labor relations to be governed only by the
applicable Public Utility Code provisions, but rather, that the district’s rules and
regulations, “including those adopted by a resolution approving a collective bargaining
agreement, must themselves be promulgated subject to the limitations and restrictions of
other applicable laws.” (Id. at p. 333.) Grier does not stand for the proposition that a
labor agreement approved by the Legislature is subject to inconsistent labor laws of
general application.
       Plaintiffs argue that even if the parties could have bargained away the protection
of Wage Order 4, they in fact did not agree to have the represented plaintiffs’
compensable time measured by federal, rather than state, law. Both the language of the
MOU’s and the circumstances of their negotiation demonstrate otherwise. Each MOU
contained a section entitled “7K Exemption,” which recited that the employees were
working under the provisions of Section 207(k) of the FLSA and that the State was
declaring a specific exemption for them, and established a 164-hour, 28-day work period
consisting of 160 hours for posted duty and four hours for pre- and post-work activities.


                                              16
In each of the MOU’s except that formed in 2011, CCPOA and the State agreed that four
hours was generally sufficient for all such activities, that they had “made a good faith
attempt to comply with all requirements of the FLSA in negotiating this provision,” and
that “[i]f any court of competent jurisdiction declares that any provision or application of
this Agreement is not in conformance with the FLSA, the parties agree to [m]eet and
[c]onfer immediately.”10 (Italics added.) And, as we have explained, the regulations
governing compensable hours of work for employees subject to a 7k exemption provide
that only the amount of time allowed by a contract or under the custom or practice need
be counted. (29 C.F.R. §§ 553.221(a), 875.9(a).) Plaintiffs cannot now rewrite their
agreement to include hours worked that are not contained in the MOU’s.
       The evidence also supports the trial court’s finding that, when negotiating the
1998-1999 MOU, the parties understood they were proceeding under the FLSA’s
standards and employees would not be entitled to compensation for the time they spent
between entering the institution and picking up their equipment or the time after the
equipment was returned. This agreed-upon schedule continued for all succeeding
MOU’s.11 The trial court properly concluded, as both a factual and legal matter, that the
FLSA, not California’s minimum wage law, governed plaintiffs’ claims as to the
represented employees.
       2. Unrepresented Employees
       The trial court concluded the FLSA also provided the legal standard for measuring
the compensable hours worked by the subclass of unrepresented employees. The court
reasoned that CalHR had established work week groups detailed in the California Pay
Scale Manual, that all the job classifications in the subclass were contained in Work
Week Group 2, and that CalHR had determined that Work Week Group 2 positions were

       10
         The 2011 MOU omitted these terms, but the parties agreed any changes would
not prejudice their positions in this litigation.
       11
         Plaintiffs make no contention that we should reach a different result for later
periods at issue here than for the earlier periods.


                                             17
subject to the FLSA. The “Work Week Group Definitions” in the Pay Scale Manual
included a section describing “Work Week Groups Established Under [FLSA].” A
subsection entitled “Hours Worked” provided that, “For the purpose of identifying hours
worked under the provisions of the FLSA, only the time spent which is controlled or
required by the State and pursued for the benefit of the State need be counted.” In a
subsection entitled “Determination of Coverage under FLSA,” the document stated that
“provisions of Work Week Group 2 are made applicable to all classes which are
determined by the Director of the Department of Personnel Administration to include
positions subject to the FLSA.” A subsection entitled “Work Periods” provided that “The
beginning of a work week may be changed if the change is intended to be permanent and
it is not designed to evade the overtime provision of the FLSA.” The subsection entitled
“Overtime Compensations” establishes standards for “FLSA overtime worked.”12 After
reviewing these provisions, the court concluded, “At all relevant times and consistent
with its legislatively delegated authority, CalHR has applied the FLSA as the standard for
measuring plaintiffs’ compensable hours worked. It follows that, as applied here, the
FLSA standard of compensability constitutes state law.”
       Plaintiffs challenge this conclusion, arguing that CalHR could not, and did not,
supersede Wage Order 4, which defines “hours worked” to mean “the time during which
an employee is subject to the control of an employer.” (Cal. Code Regs., tit. 8, § 11040,
subd. (2)(K).)
       Defendants, on the other hand, contend that CalHR, using its delegated authority
to set salaries for unrepresented employees, fixed the FLSA as the controlling legal
standard for compensable hours worked by virtue of the definition of Work Week Group
2 found in the California Pay Scale Manual. (See California Assn. of Professional
Scientists v. Department of Finance (2011) 195 Cal.App.4th 1228, 1232 [“[t]he


       12
         Government Code section 19845, subdivision (a) provides: “Notwithstanding
any other provision of this chapter, the department is authorized to provide for overtime
payments as prescribed by the Federal Fair Labor Standards Act. . . .”


                                            18
Legislature has delegated to DPA the authority to set salaries for state employees
excluded from collective bargaining”]; see also Gov. Code §§ 19843, subd. (a) [“The
[DPA], after considering the needs of the state service and prevailing overtime practices,
may establish workweek groups of different lengths or of the same length but requiring
different methods of recognizing or providing compensation for overtime”], 19849, subd.
(a) [“[t]he department shall adopt rules governing hours of work and overtime
compensation . . .”].) And Government Code section 19845 authorizes CalHR “to
provide for overtime payments as prescribed by the Federal Fair Labor Standards Act to
state employees.” (Gov. Code, § 19845, subd. (a).)
       On this record, we agree with plaintiffs. We have already concluded that
plaintiffs’ premise—that (unless superseded) the minimum wage provisions of Wage
Order 4 apply to state employees—is correct. The question, then, is whether the Pay
Scale Manual, like the MOU, displaces the state standard. As we shall explain, while the
question is a close one, we conclude the answer is no.
       There is at least some tension between Wage Order 4 and CalHR’s definition of
Work Week Group 2, which relies upon the FLSA. But our Supreme Court has
explained that wage orders are entitled to “ ‘extraordinary deference,’ ” and have “the
same dignity as statutes.” (Brinker, supra, 53 Cal.4th at p. 1027.) They are
“ ‘presumptively valid’ legislative regulations of the employment relationship [citation],
regulations that must be given ‘independent effect’ separate and apart from any statutory
enactments [citation]. To the extent a wage order and a statute overlap, we will seek to
harmonize them, as we would with any two statutes. [Citation.]” (Ibid.; see also Flowers
v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th
66, 82 [construing statute so as not to conflict with wage order].)
       We first note that, unlike the MOU’s, the Pay Scale Manual is not a legislative
enactment. Moreover, the manual itself uses language parallel to Wage Order 4
regarding the definition of “hours worked.” Wage Order 4 defines “hours worked” as




                                             19
“the time during which an employee is subject to the control of an employer.” 13
Similarly, the manual provides that “only the time spent which is controlled or required
by the State and pursued for the benefit of the State need be counted.”14 And, unlike the
federal Portal-to-Portal Act, this provision of the Pay Scale Manual includes no language
excluding time spent on pre- and post-work activities. (See 29 U.S.C. § 254(a).)15



      13
          This definition goes on to provide, “Within the health care industry, the term
‘hours worked’ means the time during which an employee is suffered or permitted to
work for the employer, whether or not required to do so, as interpreted in accordance
with the provisions of the Fair Labor Standards Act.” (Cal. Code Regs., tit. 8, § 11040,
subd. (2)(K), italics added.) In Mendiola, our high court rejected an argument that the
federal standard for measuring hours worked for resident employees should be applied to
security guards who were subject to Wage Order 4, noting: “[L]anguage in Wage Order
4 demonstrates that the IWC knew how to explicitly incorporate federal law and
regulations when it wished to do so. For example, the wage order provides that, within
the health care industry, hours worked should be interpreted in accordance with the
FLSA. (Wage Order 4, subd. 2(K).) But the order makes no reference to federal law
applying in the case of guards. The language chosen by the IWC does not support
[defendant’s] argument that a broad importation [of federal rules] was intended. Indeed,
it supports the contrary conclusion: The IWC intended to import federal rules only in
those circumstances to which the IWC made specific reference.” (Mendiola, supra, 60
Cal.4th at p. 843, italics added.)
      14
         As the trial court noted, this mirrors the language of 29 Code of Federal
Regulations Part 785.7, which states: “The United States Supreme Court originally stated
that employees subject to the act must be paid for all time spent in ‘physical or mental
exertion (whether burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and his business.’ [Citation.]
Subsequently, the Court ruled that there need be no exertion at all and that all hours are
hours worked which the employee is required to give his employer, that ‘an employer, if
he chooses, may hire a man to do nothing, or to do nothing but wait for something to
happen. . . .’ [Citations.] The workweek ordinarily includes ‘all the time during which
an employee is necessarily required to be on the employer’s premises, on duty or at a
prescribed work place’. [Citation.] The Portal-to-Portal Act did not change the rule
except to provide an exception for preliminary and postliminary activities. See
§ 785.34.” (Italics added.)
      15
        We do not opine on whether Wage Order 4 can be supplanted by the Pay Scale
Manual, but conclude that, in its current iteration, the Manual does not do so.

                                            20
       We conclude it is possible to harmonize the California Pay Scale Manual and
Wage Order 4, as we must seek to do under Brinker. (Brinker, supra, 53 Cal.4th at p.
1027.) The manual does not expressly state that law enforcement employees are not
subject to the provisions of the wage orders applicable to their job classifications, nor
does it contain any provisions concerning compensation for pre- and post-work activities.
Wage Order 4, on the other hand, explicitly provides that its “Definitions” (section 2) and
“Minimum Wages” (section 4) provisions apply to employees of the State. (Cal. Code
Regs., tit. 8, § 11040, subd. 1(B).) The section related to “Hours and Days of Work,”
which governs “Daily Overtime” and “Alternative Workweek Schedules,” does not apply
to state employees. (Id., subds. (1)(B), (3).) We may reasonably construe the regulatory
schemes to mean that entitlement to overtime compensation is controlled by the FLSA
but that the meaning of “hours worked” is governed by Wage Order 4. Such a
construction does violence to neither regulatory scheme.
       Accordingly, we conclude the unrepresented employees are entitled to pay for all
hours worked under the applicable California standard rather than the FLSA’s standard.
We shall therefore remand the matter to the trial court for further proceedings, in which it
will determine whether, and to what extent, the unrepresented employees were not
compensated for their work.
   D. Breach of Contract
       The trial court ruled against plaintiffs on their cause of action for failure to pay
overtime in breach of their common law contractual obligation. As to the subclass of
represented employees, the court concluded “[t]he comprehensive and exclusive nature of
the MOUs forecloses the Represented Employees from asserting common law claims for
overtime.” As to the unrepresented employees, the court stated, “the terms of their
employment are established by CalHR pursuant to the Government Code. CalHR has
established specific rules addressing the subject of overtime pay, thereby foreclosing
plaintiffs’ common law claims. [¶] Moreover, plaintiffs failed to persuasively establish at
trial the existence of any agreement to pay overtime to the Unrepresented Employees.
[Citation.] The Court finds and concludes that there was no such agreement.” Plaintiffs


                                              21
argue this ruling was error, and that they have the contractual right to overtime pay on the
performance of work.
       Plaintiffs rely primarily on Madera Police Officers Assn. v. City of Madera (1984)
36 Cal.3d 403 (Madera) and White, supra, 30 Cal.4th 528. The issue in Madera was
whether the constraints placed on the activities of city police officers during their
mealtime break were so restrictive that the breaks constituted work time, entitling them to
overtime pay. (Madera, 36 Cal.3d at p. 406.) After ruling that the meal periods
constituted work time, our high court concluded that the city’s ordinances and regulations
mandated overtime pay for work performed in excess of the normal eight-hour day and
40-hour week. (Id. at pp. 409-413.) The court went on to explain: “ ‘[T]o the extent
services are rendered under statutes or ordinances then providing mandatory
compensation for authorized overtime, the right to compensation vests upon performance
of the overtime work, ripens into a contractual obligation of the employer and cannot
thereafter be destroyed or withdrawn without impairing the employee’s contractual right.’
[Citation.] The [meal period] time of the sergeants, officers and dispatchers was work in
excess of the eight-hour day, and the employees’ right to overtime compensation,
mandated by the city regulations, vested upon performance.” (Id. at pp. 413-414; see also
Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22 [“A claim for compensation
owed by an employer for services already performed is contractual . . .”].) In White, our
high court concluded that, although employees who worked during a budget impasse had
no right to the immediate payment of salary in the absence of a duly enacted
appropriation, “employees who work during a budget impasse obtain a right, protected by
the contract clause, to the ultimate payment of salary that has been earned.” (White,
supra, 30 Cal.4th at pp. 570-571.)
       The court in Sheppard reached a similar conclusion. The plaintiff there, a part-
time instructor for a program created by four public school districts, was required to
spend 20 minutes of unpaid time preparing for every hour he spent teaching. Among the
claims he asserted was one for breach of contract, and the trial court sustained the
defendant’s demurrer, which was made on the ground that “ ‘public employees hold their


                                             22
positions by statute and are prohibited from maintaining a cause of action for breach of
contract . . . ’ ” (Sheppard, supra, 191 Cal.App.4th at pp. 293-294, 311.) The appellate
court reversed. Noting that the breach of contract claim was directed solely at recovering
earned but unpaid wages, the court concluded that under Supreme Court authority, the
plaintiff had a contractual right to such wages, protected by the contract clause of the
state Constitution, and that his contract claim was not defeated by his status as a public
employee. (Id. at pp. 311-313, citing White, supra, 30 Cal.4th 528, Miller v. State of
California (1977) 18 Cal.3d 808, 814 [public employee pension laws establish
contractual rights], and Kern v. City of Long Beach (1947) 29 Cal.2d 848, 853 [right of
public employee to payment of earned salary protected by contract clause of
Constitution].)
       Also of note, our Supreme Court has concluded that “contractual rights may be
implied from an ordinance or resolution when the language or circumstances
accompanying its passage clearly evince a legislative intent to create private rights of a
contractual nature enforceable against [a] county.” (Retired Employees Assn. of Orange
County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1177 (Retired Employees).) In
Retired Employees, at the request of the United States Court of Appeals for the Ninth
Circuit, the court considered the abstract question of whether, under state law, a
California county and its employees can form an implied contract that confers on retired
employees vested rights to health benefits. (Id. at p. 1176.) The court answered that
question in the affirmative, so long as there was no legislative prohibition against such an
arrangement such as a statute or ordinance. (Id. at pp. 1176, 1194.) In doing so, it noted
that a contract may be express or implied, and that even a written contract may contain
implied terms. (Id. at pp. 1178-1179.) However, “ ‘the law does not recognize implied
contract terms that are at variance with the terms of the contract as expressly agreed or as
prescribed by statute.’ [Citations.]” (Id. at p. 1181, italics added; see also Sonoma
County Ass’n of Retired Employees v. Sonoma (9th Cir. 2013) 708 F.3d 1109, 1114
[following White and stating “an ordinance or resolution can create a contract when the



                                             23
legislation’s text or the ‘circumstances accompanying its passage’ clearly evince an intent
to contract, as opposed to an intent to make policy”].)16
       With respect to the subclass of represented employees, we agree with the trial
court that plaintiffs have not established a contract that would support their claim. We
have already concluded that the State and CCPOA agreed to have their compensable time
measured by federal, rather than state, law. Each MOU provided that it “set[] forth the
full and entire understanding of the parties regarding the matters contained herein . . .”
And each was approved by the Legislature. There is no basis to conclude that either the
parties or the Legislature intended to create an implied right to compensation in addition
to that agreed to in the MOU’s. (See Retired Employees, supra, 52 Cal.4th at p. 1177;
Chisom v. Board of Retirement of Fresno County Employees’ Retirement Assn. (2013)
218 Cal.App.4th 400, 415 [“an implied term may not be found where it would contradict
the express terms of the contract”].)
       We reach a different result as to the subclass of unrepresented employees. We
have already concluded they are entitled to compensation for all hours worked under
California’s broader standard. And Madera, White, and Sheppard teach that a breach of
contract claim may be based on earned but unpaid wages. (Madera, supra, 36 Cal.3d at
pp. 413-414; White, supra, 30 Cal.4th at pp. 570-571, Sheppard, supra, 191 Cal.App.4th
at pp. 311-313.) To the extent the unrepresented employees are entitled to additional
compensation for hours worked, based on the overtime policies in effect at the time they
performed that work, they may assert those claims in a cause of action for breach of
contract.




       16
           The court also noted that “[a] contractual right can be implied from legislation
in appropriate circumstances. [Citation.] Where, for example, the legislation is itself the
ratification or approval of a contract, the intent to make a contract is clearly shown.”
(Retired Employees, supra, 52 Cal.4th at p. 1187.)

                                             24
   E. Violation of Sections 222 and 223
       Plaintiffs’ final challenge is to the trial court’s grant of judgment on the pleadings
as to their cause of action for failure to pay contractual overtime in violation of sections
222 and 223.
       Section 222 provides: “It shall be unlawful, in case of any wage agreement
arrived at through collective bargaining, either willfully 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.” Section 223 provides: “Where any statute or contract
requires an employer to maintain a 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.”
The trial court concluded that these statutes are not applicable to public employers and
that, in addition, plaintiffs had not alleged facts sufficient to state a claim for violation of
section 223 because they did not allege secret deductions or “kickbacks.”
       We agree with the trial court that plaintiffs cannot maintain this cause of action.
As to the subclass of represented plaintiffs, we have already concluded that they agreed
to have their hours worked measured by federal law and that the Legislature approved
this arrangement. Their causes of action for violations of sections 222 and 223
necessarily fail. The subclass of unrepresented plaintiffs has no cause of action for a
violation of section 222, since that statute, by its terms, applies only to parties to a
collective bargaining agreement.
       We also agree with the trial court that the unrepresented employees may not
maintain their cause of action for violation of section 223. Our high court has explained
that “[t]he use of the device of deductions creates the danger that the employer, because
of his superior position, may defraud or coerce the employee by deducting improper
amounts. . . . [I]t was the utilization of secret deductions or ‘kick-backs’ to make it
appear that an employer paid the wage provided by a collective bargaining contract or by
a statute, although in fact he paid less, that led to the enactment of Labor Code sections
221-223 in 1937. These sections, this court said in Sublett v. Henry’s etc. Lunch[ (1942)]
21 Cal.2d 273, 274, ‘are declarative of an underlying policy in the law which is opposed


                                               25
to fraud and deceit.’ ” (Kerr’s Catering Service v. Department of Industrial Relations
(1962) 57 Cal.2d 319, 328-329; see also Brown v. Superior Court (2011) 199
Cal.App.4th 971, 991 [section 223 “ ‘was enacted to address the problem of employers
taking secret deductions or “kickbacks” from their employees’ ”], citing Amaral v. Cintas
Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1205.) Plaintiffs did not allege any facts
demonstrating that the State used secret deductions or deceived them in any way.
       Plaintiffs argue, however, that a violation of section 223 may be found even in the
absence of a secret agreement. They draw our attention to Armenta, supra, 135
Cal.App.4th at p. 323 and Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th
36, 48-50 (Gonzalez). In Armenta, the plaintiffs, employees of a business that maintained
utility poles, alleged they were not paid for time they spent carrying out such tasks as
loading equipment and supplies, traveling to their work site in company vehicles, and
preparing paperwork, and they asserted a minimum wage claim for those hours.
(Armenta, 135 Cal.App.4th at p. 317.) The company contended it did not violate
California’s minimum wage law because the employees were compensated weekly at an
amount greater than the total hours worked multiplied by the minimum wage; that is, the
employees’ average hourly rate was higher than California’s minimum wage. (Id. at p.
319.) The appellate court rejected this argument, noting as it did so that sections 221,17
222, and 223 “articulate the principal 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, 135 Cal.App.4th at p. 323.) The employees in Gonzalez, service technicians at
an automobile dealership, were paid on a “piece-rate” basis, under which they were paid
at a flat rate for each task they performed on automobiles. While they were not repairing
vehicles, they sometimes had to perform other tasks. The employer tracked all the time
the technicians were at the worksite and supplemented their pay if the amount the


       17
          Section 221 provides: “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.”


                                             26
technicians earned for their piece-rate tasks was less than the amount they would have
earned if they were paid the minimum wage for all their hours “on the clock.” (Gonzalez,
215 Cal.App.4th at pp. 41-42.) The technicians brought an action claiming the employer
had failed to pay the minimum wage during the time they were not performing repairs.
(Id. at p. 42.) The appellate court concluded this method of pay violated Wage Order 4.
In the course of doing so, it applied the reasoning of Armenta, noting that sections 221,
222, and 223 govern an employer’s obligation to pay wages, and that the employer’s
method of averaging wages would result in some technicians not receiving pay for all
their nonproductive time. (Gonzalez, at p. 50.)
       Neither Armenta nor Gonzalez presents the situation we face here: Plaintiffs are
not using sections 221, 222, and 223 to support a minimum wage claim, but instead assert
a stand-alone cause of action for violation of section 223, which by its terms applies to an
employer who “secretly pay[s] a lower wage while purporting to pay the wage designated
by statute or by contract.” (Italics added.)18 While the term “secretly” may reasonably
be applied where an employer seeks to average the total pay for both compensated and
uncompensated time, it would stretch the meaning of the word beyond all recognition to
apply it here, where the only issue is a bona fide dispute about whether the time the
employees spent on pre- and post-work activities constituted hours worked.
       We conclude, therefore, that the trial court properly granted judgment on the
pleadings as to the causes of action for violations of sections 222 and 223. We need not
address the additional question of whether public entities are subject to those statutory
provisions.




       18
          Noting that section 225 makes it a misdemeanor to violate section 223 and that
section 225.5 establishes civil penalties for violating that statute, a federal district court
has concluded the Legislature did not intend to create a private right of action for
violation of section 223. (Calop Bus. Sys. v. City of Los Angeles (C.D.Cal. 2013) 984
F.Supp.2d 981, 1015; accord Johnson v. Hewlett-Packard Co. (N.D.Cal. 2011) 809
F.Supp.2d 1114, 1136, affd. 2013 U.S. App. Lexis 18497.) The parties have not raised
this issue, and we need not consider it.

                                              27
                                   III.    DISPOSITION
       The judgment as to the subclass of unrepresented employees is reversed as to the
second and fourth causes of action, and the matter is remanded to the trial court for
further proceedings not inconsistent with this opinion. In all other respects, the judgment
is affirmed.




                                            28
                                                        _________________________
                                                        Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




Kurt Stoetzl et al. v. State of California, Department of Human Resources et al. (A142832)


                                                   29
Trial Court:                 San Francisco County Superior Court

Trial Judge:                 Honorable John E. Munter

Counsel for Plaintiffs and   Carroll, Burdick & McDonough LLP, Jack T.
Appellants:                  Friedman, Jonathan D. Yank, Laurie J. Hepler, and
                             David M. Rice; Messing Adam & Jasmine LLP, Gregg
                             McLean Adam; and Goyette and Associates, Inc., Gary
                             G. Goyette.

Counsel for Defendants and   Kronick, Moskovitz, Tiedemann & Girard, David W.
Respondents:                 Tyra and Kristianne T. Seargeant; California
                             Department of Human Resources, Joan A. Markoff,
                             Chief Counsel, Frolan R. Aguiling, Deputy Chief
                             Counsel, Christopher E. Thomas, Labor Relations
                             Counsel, and David D. King, Labor Relations Counsel.




                                      30
