CACI No. 2750. Failure to Reimburse Employee for Necessary Expenditures or Losses - Essential Factual Elements (Lab. Code, § 2802(a))
Judicial Council of California Civil Jury Instructions (2024 edition)
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2750.Failure to Reimburse Employee for Necessary Expenditures
or Losses - Essential Factual Elements (Lab. Code, § 2802(a))
[Name of plaintiff] claims that [name of defendant] failed to reimburse
[him/her/nonbinary pronoun] for necessary [expenditures/ [and] losses]. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] incurred [expenditures/ [and] losses] as a
direct consequence of [discharging [his/her/nonbinary pronoun] job
duties/obeying the directions of [name of defendant]];
2. That the [expenditures/ [and] losses] were necessary and
reasonable;
3. That [name of defendant] failed to reimburse [name of plaintiff] for
the full amount of the [expenditures/ [and] losses]; and
4. The amount of the [expenditures/ [and] losses] that [name of
defendant] failed to compensate.
[“Necessary [expenditures/ [and] losses]” may include [expenditures/
[and] losses] [name of plaintiff] would have incurred even if
[he/she/nonbinary pronoun] did not also incur them as a direct
consequence of discharging [his/her/nonbinary pronoun] job duties or
obeying the directions of [name of defendant].]
New November 2021
Directions for Use
This instruction assumes the plaintiff is an employee and the defendant is the
employer. The instruction will need to be modified if there is a dispute about the
defendant’s status as an employer or the plaintiff’s status as an employee of the
defendant. Labor Code section 2802 covers necessary expenditures and losses. If
only one of those is at issue, select the appropriate option.
If there is an argument that the directions of the employer were unlawful, modify
the instruction as necessary. (See Lab. Code, § 2802(a).)
Necessary expenditures and losses may include some personal expenses, for
example, the cost of a personal cellphone that is used to make work-related calls.
(See Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1144
[176 Cal.Rptr.3d 407].) Omit the final paragraph if personal expenses are not at
issue.
Sources and Authority
• Obligations of Employer to Indemnify. Labor Code section 2802(a).
• “We conclude that an employer may satisfy its statutory reimbursement
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obligation by paying employees enhanced compensation in the form of increases
in base salary or increases in commission rates, or both, provided there is a
means or method to apportion the enhanced compensation to determine what
amount is being paid for labor performed and what amount is reimbursement for
business expenses.” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th
554, 559 [67 Cal.Rptr.3d 468, 169 P.3d 889].)
• “Does an employer always have to reimburse an employee for the reasonable
expense of the mandatory use of a personal cell phone, or is the reimbursement
obligation limited to the situation in which the employee incurred an extra
expense that he or she would not have otherwise incurred absent the job? The
answer is that reimbursement is always required. Otherwise, the employer would
receive a windfall because it would be passing its operating expenses on to the
employee. Thus, to be in compliance with section 2802, the employer must pay
some reasonable percentage of the employee’s cell phone bill.” (Cochran, supra,
228 Cal.App.4th at p. 1144.)
• “In calculating the reimbursement amount due under section 2802, the employer
may consider not only the actual expenses that the employee incurred, but also
whether each of those expenses was ‘necessary,’ which in turn depends on the
reasonableness of the employee’s choices. For example, an employee’s choice of
automobile will significantly affect the costs incurred. An employee who chooses
an expensive model and replaces it frequently will incur substantially greater
depreciation costs than an employee who chooses a lower priced model and
replaces it less frequently. Similarly, some vehicles use substantially more fuel or
require more frequent or more costly maintenance and repairs than others. The
choice of vehicle will also affect insurance costs. Other employee choices, such
as the brand and grade of gasoline or tires and the shop performing maintenance
and repairs, will also affect the actual costs. Thus, calculation of automobile
expense reimbursement using the actual expenses method requires not only
detailed recordkeeping by the employee and complex allocation calculations, but
also the exercise of judgment (by the employer, the employee, and officials
charged with enforcement of § 2802) to determine whether the expenses incurred
were reasonable and therefore necessary.” (Gattuso, supra, 42 Cal.4th at p. 568.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 440, 442
2 Wilcox, California Employment Law, Ch. 30, Employer’s Tort Liability to Third
Parties for Conduct of Employees, § 30.09 (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and
Hour Disputes, § 250.21 (Matthew Bender)
2751. Reserved for Future Use
CACI No. 2750 LABOR CODE ACTIONS
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