On March 12, 2020, in the case Kim v. Reins International California, Inc., the California Supreme Court addressed the issue: “Do employees lose standing to pursue a claim under the Labor Code Private Attorneys General Act (“PAGA”) … if they settle and dismiss their individual claims for Labor Code violations?”  Unfortunately, for employers in

On September 12, 2019, the California Supreme Court issued it decision in ZB, N.A., and Zions Bancorporation v. Superior Court [Lawson, real party in interest] (“Lawson”).  In analyzing whether the Plaintiff’s lawsuit could be compelled to binding arbitration under the arbitration agreement she entered into with her employer, the Supreme Court clarified that under Labor Code section 558, employees are not entitled to recover underpaid wages in a Private Attorneys General Act (“PAGA”) claim.

Before the enactment of the PAGA, section 558 gave the Labor Commissioner authority to issue overtime violation citations for a civil penalty as follows:

(1)        For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

(2)        For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

(Labor Code §558, italics added.)

The Lawson case concerned a PAGA action seeking civil penalties under Labor Code section 558.  Lawson brought the representative action against her employer, ZB, N.A. — with whom she agreed to arbitrate all employment claims and forego class arbitration — and its parent company, Zions Bancorporation (collectively, “ZB”).  ZB filed a motion compelling that Lawson  individually arbitrate her “unpaid wages” claim under section 558 because it was not a PAGA civil penalty claim.

The trial court generally agreed, bifurcating Lawson’s action and granting ZB’s motion to compel arbitration of the “unpaid wages” issue.  However, it ordered the issue to arbitration “as a representative action” for the unpaid wages of all aggrieved ZB employees.  ZB responded by filing both an appeal and petition for writ of mandate with the Court of Appeal.  After consolidating the two, the appellate court dismissed the appeal, holding that Code of Civil Procedure section 1294 only gave it appellate jurisdiction over an order dismissing, not granting, a motion to compel arbitration.  However, ZB persuaded the Court of Appeal to issue the writ of mandate, but the court did so on a different ground from the one ZB asserted.  The appellate court concluded that Lawson’s request for “unpaid wages” under section 558 in fact could not be arbitrated at all.  Relying on Thurman v. Bayshore Transit Management (Thurman), the Court of Appeal interpreted section 558 to expressly include “underpaid wages” within the scope of its “civil penalty” provision.  In the appellate court’s view, an employee could pursue the entire, indivisible civil penalty through the PAGA action, and that pursuant to Iskanian v. CLS Transportation Los Angeles, LLC, her employer could not compel the PAGA claim to arbitration.
Continue Reading The California Supreme Court Clarifies Wages are NOT Part of the “Civil Penalty” under Labor Code Section 558 in a PAGA Action

Brendan Begley spearheads the firm’s Appeals and Writs group and is a member of the firm’s labor and employment, litigation, and trust, probate and elder abuse litigation groups. He is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.

Brendan will be speaking at The Rutter Group and the

 On December 10, 2018, the Fourth Appellate Court decision in Kennedy Donohue v.  AMN Services, LLC  (“AMN”) was certified for publication and it brings good news for California employers who use a neutral rounding timekeeping system. The case involved a class action and PAGA action brought by Ms. Donohue on behalf of nurse recruiters who worked for AMN.  Ms. Donohue claimed that AMN had violated various California wage and hour laws and brought claims for: 1) failure to provide meal and rest periods in violation of Labor Code sections 226.7 and 1197.1; 2)  failure to pay overtime and minimum wage in violation of Labor Code sections 510 and 1197.1; 3) improper wage statements in violation of Labor Code section 226; 4) unreimbursed business expenses in violation of Labor Code section 2802; 5) waiting time penalties in violation of Labor Code sections 201-203; 6) unfair business practices in violation of Business and Professions Code section 17200; and 7) civil penalties authorized by the Labor Code Private Attorneys General Act of 2004  (PAGA), under Labor Code section 2698 et seq.
Continue Reading Employer’s Rounding Policy Upheld and Employees Lose Their Class Action & PAGA Lawsuit

Summary of Program:

Wage and hour lawsuits and claims filed with the Department of Labor and the California Labor Commissioner continue to plague California employers. Often employers are sued because of technical violations that occur simply because the employer is unaware of its legal obligations. Other times, employers make the mistake of treating an employee as exempt from Wage Orders and Labor Code laws, when in fact the employee does not qualify.

This seminar will help employers understand and comply with wage and hour laws in California.  In addition, this seminar will help employers, HR professionals, supervisors, and payroll managers gain a more thorough understanding of the various exemptions available under California law and learn how to conduct a legally strong exemption analysis.
Continue Reading Pay Correctly Now or Pay More Later: All You Need to Know About Wage and Hour Laws