Last week, a panel of the Ninth Circuit Court of Appeals certified three questions to the California Supreme Court.  For those not familiar with the certification procedure, when a federal court "certifies" a question to the state Supreme Court is it asking the Court to clarify a point of state law that is important to the case, but has not yet been ruled on by the state Supreme Court.  Certified questions provide a unique opportunity to get clarity on issues of law from the horse's mouth, so to speak.  

Two of the questions certified pertain specifically to employers of ambulance attendants working 24-hour shifts, and so are not applicable to employers broadly.  But the third question certified will apply to all employers if the California Supreme Court answers it.  As most employers know, if a compliant meal or rest period is not provided to an employee, the employer must pay an additional hour's worth of pay as a "penalty" or "premium."  

Are these "premiums" considered "wages" for purposes of other Labor Code provisions?  That is the question certified to the Supreme Court by the Ninth Circuit.  Prior decisions of the Supreme Court have given apparently conflicting answers.  As explained by the Ninth Circuit's certification order: "In Murphy v. Kenneth Cole Productions, Inc., 155 P.3d 284, 297 (Cal. 2007), the Court characterized the extra hours paid for meal period violations as a 'premium wage' rather than a penalty, but, in Kirby v. Immoos Fire Protection, Inc., 274 P.3d 1160, 1167–68 (Cal. 2012), the Court held that a meal-period violation is not tied to the nonpayment of wages."  

The answer to this question is important because Labor Code section 203 imposes waiting-time penalties only for late payment of final "wages" (not, for example, for expense reimbursements).  Similarly, Labor Code section 226 requires accurate reporting of an employee's "wages," which would include missed meal and rest break premiums if they are held to be "wages."  

Employment litigators and employers should follow the resolution of these certified questions because they could have an impact on litigation and payroll practices.