Store Owner's Ex-Girlfriend Was Never Employee, Not Entitled to Back Wages

​Although she claimed she worked at her former boyfriend's reptile store for two and a half years, the evidence showed that the plaintiff in a wage and hour lawsuit against the store was never actually a store employee, so she was not entitled to back wages, a California appeals court recently ruled.

The plaintiff and the defendant/store owner were involved romantically from sometime in 2016 until August 2019. During that time, the defendant operated three stores, which sold reptiles and supplies. His brother co-owned the stores and was also named as a defendant. The three stores are in Garden Grove, Downey and Long Beach, Calif.

After the plaintiff's relationship with the store owner ended, she filed an action for unpaid wages. The plaintiff testified at trial that she worked for the defendants from January 2017 until August 2019. She typically worked full days at the stores, beginning at 11:00 a.m. or noon and finishing at about 8:00 p.m. Her work included cleaning animal cages, purchasing supplies and assisting customers. She worked approximately 30 hours per week in 2017, and approximately 15 hours per week in 2018 and 2019. The only compensation she ever received during the approximately two-and-a-half years she worked for the defendants was about $300 in cash.

The plaintiff testified that she was never included on the employee work schedule, employee meetings or in the employee Facebook chat group; instead, the store owner would tell the plaintiff each morning where to work. The plaintiff did not record the hours she worked. She claimed that the store owner agreed to pay her for her work, but they never discussed how much she would be paid. The plaintiff stopped working for the store when her relationship with the store owner ended. She claimed she was owed about $30,000 in back wages.

On cross-examination, the plaintiff admitted sending threatening texts and messages to the store owner that said she was going to destroy his business.

A store employee testified that, although she never saw the plaintiff working in the store or saw the plaintiff's name on the weekly schedule, she believed the plaintiff was an employee because the owner was "always talking about how she was there at the store."

The owner testified that, although the plaintiff sometimes frequented the store, she was never hired or employed by the store and did not perform work for the business.

At the conclusion of the plaintiff's case, the court dismissed the lawsuit, concluding that the plaintiff was not an employee. She appealed.

Plaintiff Was Not an Employee

The appeals court affirmed the dismissal of the action, concluding that substantial evidence supported the trial court's finding that the defendants were not liable to plaintiff for wages because they did not employ her.

The court noted that the California Labor Code does not define "employee," but that the state Supreme Court has held that to employ "has three alternative definitions. It means:

• To exercise control over the wages, hours or working conditions.
• To permit to work.
• To engage.

The question of whether an employment relationship exists is a question of fact, the appeals court said.

Considering the evidence produced at trial, the appeals court concluded that no one other than the plaintiff actually testified that she worked at any of the stores. Other witnesses merely noted that she was often present at the stores.

Moreover, the court concluded that the plaintiff had not been a credible witness, while the other witnesses were far more credible. The court rejected the plaintiff's claim that the trial court erred in finding her not credible because "an employee's credibility is irrelevant to payment of their wages."

While it undoubtedly is the case that an employee is entitled to be paid for her work without regard to her character, the court said, because there was conflicting evidence about whether the plaintiff was employed by or worked for the defendants, the trial court necessarily made credibility determinations to decide how to weigh the testimony of each witness.

The court also rejected the plaintiff's claim that the trial court erred by requiring her to prove she was an employee, rather than requiring the defendants to prove she was not. Previous cases have held that, although a plaintiff normally has the burden of proving each fact essential to her claim for relief, a different rule applies in the wage and hour context when an employer's compensation records are so incomplete or inaccurate that an employee cannot prove damages, or when the parties have unequal access to evidence necessary to prove a disputed issue.

In this case, however, the court noted, the trial court found that the plaintiff had failed to prove that she was employed by the defendants at all—not that she failed to establish the number of hours that she had worked but for which she had not been paid. Under these circumstances, it is not true that the defendants should have had the burden of proof, the court said. 

Lewis v. Reptile Factory, Calif. Ct. App., No. B324197 (Oct. 12, 2023).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.