Peabody

Susan Peabody worked for Time Warner Cable, Inc. (Time Warner), as a commissioned salesperson. She received biweekly paychecks, which included hourly wages in every pay period and commission wages approximately every other pay period. After Peabody stopped working for Time Warner, she sued, alleging various wage and hour violations. Time Warner removed the matter to federal court and successfully moved for summary judgment. Peabody appealed.

At the request of the United States Court of Appeals for the Ninth Circuit (Peabody v. Time Warner Cable, Inc. (9th Cir. 2012) 689 F.3d 1134 (Peabody); Cal. Rules of Court, rule 8.548), we consider whether an employer may attribute commission wages paid in one pay period to other pay periods in order to satisfy California’s compensation requirements. We conclude the answer is no.

I. BACKGROUND

From July 2008 to May 15, 2009, Peabody was a Time Warner account executive selling advertising on the company’s cable television channels. Every other week, Time Warner paid $769.23 in hourly wages, the equivalent of $9.61 per hour, assuming a 40-hour workweek. About every other pay period, Time Warner paid commission wages under its account…