Modification Upon Rehearing in Marin v. Costco

The Second District Court of Appeal has modified its opinion and denied rehearing in Marin v. Costco Wholesale Corp. (2008) 169 Cal.App.4th 804. The modification does not change the judgment. The modification is as follows:

It is ordered that the opinion filed herein on December 23 2008, be modified as follows:

1. On page 13, the second full paragraph is modified to read: In sum, no California court decision, statute, or regulation governs bonus overtime, the DLSE Manual sections on the subject do not have the force of law, and the DLSE advice letters on the subject are not on point. Thus, there is no controlling California authority apart from the directive that overtime hours be compensated at a rate of no less than one and one-half times the regular rate of pay. (Lab. Code, § 510, subd. (a).) In deciding whether defendant’s bonus plan fulfills that directive, we are persuaded that the DLSE Manual provisions for overtime on production bonuses set forth a valid formula. (See Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 563 [court may adopt a DLSE statutory interpretation embodied in a void regulation if it independently determines that the interpretation is correct].) We conclude that defendant’s plan is consistent with that formula, and thus that the plan does not violate California law. 
2. On page 14, the third sentence in the first full paragraph is modified to read as follows (the citation following the sentence is unchanged): Therefore, as one commentator has observed, overtime on a bonus based on hours worked should be calculated in the same manner as overtime on a bonus based on production, under the formula set forth in section 49.2.4 of the Manual.

There is no change in the judgment. The petition for rehearing is denied.

We discussed the original opinion in a recent post found at this link.