Wage Statements and PAGA: Plaintiffs need not show injury or a knowing and intentional violation to prevail

California Labor Code section 226(a) requires that employers provide accurate, itemized wage statements to employees.  Those statements must include nine categories of information.  Labor Code section 226(e)(1) provides that an employee who suffers injury as a result of a knowing and intentional failure to comply with subdivision (a) is liable for up to $4,000 plus costs and reasonable attorney’s fees.  (The terms injury and knowing and intentional failure are further defined in section 226(e)(2)).

Litigants have grappled for years over the question of whether the injury and knowing/intentional failure requirements of section 226(e) apply to a plaintiff who sues under the Private Attorneys General Act (“PAGA”) seeking civil penalties for a violation of section 226(a).  Continue reading “Wage Statements and PAGA: Plaintiffs need not show injury or a knowing and intentional violation to prevail”


Recovering Wages under PAGA:  The Battle over Labor Code Section 558

The Private Attorneys General Act, or PAGA, allows workers to recover civil penalties that otherwise would only be recoverable by the State of California.  This includes the civil penalties described in Labor Code section 558.  Section 558 is unusual because, through PAGA, it provides that workers can recover both flat rate penalties and penalties equal to their underpaid wages.  And unlike other PAGA penalties, of which 75 percent go to the State and 25 percent go to the workers, the underpaid wages recovered under section 558 all go directly to the workers.

Continue reading “Recovering Wages under PAGA:  The Battle over Labor Code Section 558”


The Ninth Circuit clarifies the requirements for standing in FCRA cases: Spokeo 2

On August 15, 2017, after remand from the U.S. Supreme Court, the Ninth Circuit issued a second opinion in the case of Robins v. Spokeo, case no. 2:10-cv-05306-ODW-AGR (Spokeo II).  Spokeo II clarifies the requirements for standing under the Fair Credit Report Act (“FCRA”).  At the same time, it leaves open two critical questions that will need to be resolved by future litigation. Continue reading “The Ninth Circuit clarifies the requirements for standing in FCRA cases: Spokeo 2”


SLAPP Motions and Discrimination Claims: The California Supreme Court Limits Defendants’ Ability To Attack FEHA Cases

California has a powerful statute that is aimed at protecting our right to engage in free speech.  Known as the SLAPP law, Code of Civil Procedure section 425.16 allows people who are sued for engaging in free speech to bring a motion dismiss the lawsuit that has been filed against them.  In order to prevail […]


On-Call Rest Periods Not Permitted in California

California’s Wage Orders provide as follows:

Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (31/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

The Wage Orders require employers to pay the employee for one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided and for an additional hour of pay at the employee’s regular rate of compensation for each workday that a meal period is not provided.  See also California Labor Code Section 226.7.

In a recent case addressing an employer’s obligation to relieve its employees of all duties during a rest period, the California Supreme Court held that “employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”  Augustus v. ABM Sec. Servs., Inc. (Mar. 15, 2017) 2 Cal.5th 257, 260.  The Court clarified that an employers’ obligation to relieve an employee of all duties applied not only to meal periods, but also to rest periods.  Id. at 265.  Continue reading “On-Call Rest Periods Not Permitted in California”


Arbitration Agreements Cannot Ban Injunctive Relief in California

Many California laws provide for injunctive relief, such as a court order prohibiting the defendant from continuing to engage in the acts of practices that gave rise to the lawsuit.  One example is the unfair competition law, Business & Professions Code § 17200 et seq, which is referred to as the UCL.  In the employment law context, workers sometimes bring claims under the UCL in part because it has a longer statute of limitations (4 years) than many wage and hour laws.

The UCL provides that an injured person can seek an order preventing future conduct:

Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.  The court may make such orders or judgments…as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.  (Bus. & Prof Code, § 17203.)

Injunctive relief is both critical and powerful.  In some cases it prevents defendants from getting away with a slap on the wrist.  It also allows courts to stop defendants from engaging in illegal conduct now and into the future.

In recent years, however, many companies have implemented arbitration agreements that bar anyone who sues them from seeking injunctive relief.  Some of these agreements go so far as to prevent people from seeking injunctive relief in any forum, including court.  The California Supreme Court recently reviewed such agreements, and held that provisions in arbitration agreements that waive the right to seek public injunctive relief in any forum are contrary to public policy and unenforceable.  This ruling should allow workers who are forced into arbitration to at least be able to pursue their claims for injunctive relief. Continue reading “Arbitration Agreements Cannot Ban Injunctive Relief in California”


PAGA and Arbitration: The Growing Conflict between State and Federal Court

In earlier posts, we have explored the question of whether arbitration agreements that are broad enough to include claims under California’s Private Attorneys General Act (Labor Code section 2698), or PAGA, should be enforced.  As of March 2017 there is a growing split between state and federal courts on this issue.  As a result, which court a case winds up in may very well determine how the court rules on this critical question. Continue reading “PAGA and Arbitration: The Growing Conflict between State and Federal Court”


No Arbitration of PAGA Claims

PAGA continues to be an important tool for workers in California seeking to enforce their rights under the Labor Code.  Employers continue to try to force PAGA claims into arbitration, where they think that they have a decisive advantage.  Yet courts continue to block these efforts.  As a result, PAGA claims remain in court where they belong.

The latest case to hold that PAGA claims cannot be arbitrated is Hernandez v. Ross Stores, Inc. (2d DCA Pub. Order 1/3/17) E064026.  There, the plaintiff, a warehouse worker, sought to bring a PAGA-only action against the discount store giant for failure to pay wages, failure to properly itemize hours, and failure to pay overtime.  Ross attempted to compel Hernandez to arbitrate her individual claims, arguing that its arbitration agreement stated that it applied to “any disputes arising out of or relating to the employment relationship” between Ross and an employee.  Ross contended, based upon this language, that before Hernandez could bring a PAGA action, she had to arbitrate the “dispute” over whether she was an aggrieved employee.

Not surprisingly, this too-clever-by-half argument failed.  Both the trial court and Division Two of the Second District Court of Appeal held that Hernandez could not be compelled to arbitrate her PAGA claims.  The trial court grounded its analysis in the seminal case of Iskanian v. CLS Transportation (2014) 59 Cal.4th 348, which held that PAGA actions-whether seeking penalties for one employee or for a group of them-are fundamentally law enforcement actions designed to protect the public.  In PAGA cases, there are therefore no individual claims to arbitrate. Continue reading “No Arbitration of PAGA Claims”


No On Call or On-Duty Rest Periods in California

On December 22, 2016, the California Supreme issued a blockbuster opinion in the case of Augustus v. ABM Security Services, Inc. (S224853).  As described more fully below, the Court held that California law prohibits both “on call” and “on duty” rest periods.  On call rest periods are those in which an employee is available by phone or by radio.  On duty rest periods are those in which the employees continue to perform some job duties.  For example, the plaintiffs in Augustus claimed that:

ABM required guards to keep their radios and pagers on, remain vigilant, and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems, and responding to emergency situations.

The holding in Augustus means that employers must relieve their workers of all duties, and relinquish all control over them during their breaks.  As such, Augustus is consistent with the seminal case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  Like BrinkerAugustus is a huge win for workers.

Continue reading “No On Call or On-Duty Rest Periods in California”


Is your California employer paying you on time? If not, it may face significant penalties under PAGA.

Employers in California have to pay their employees by a certain date.  That date depends on whether the payments are made every two weeks (bi-weekly), twice a month (bi-monthly), or otherwise.  If an employer does not make its payments on time, it can face significant liability under the Private Attorneys General Act, as described below. Continue reading “Is your California employer paying you on time? If not, it may face significant penalties under PAGA.”