A California Chamber of Commerce-supported job creator bill that provides employers with a limited opportunity to cure technical violations in an itemized wage statement before being subject to costly and devastating litigation was signed by the Governor on Friday.
AB 1506 (R. Hernández; D-West Covina) which received unanimous support in both houses as it moved through the legislature, will help to limit frivolous and costly litigation against employers for technical violations on an itemized wage statement that does not create any injury to an employee, by allowing the employer a limited time period to fix the violation before any civil litigation is pursued, so that an employer can devote its financial resources to expanding its workforce. AB1506 contains an urgency clause and thus became effective immediately upon signing.
Private Attorneys General Act
The Labor Code Private Attorneys General Act (PAGA) allows an employee to file a “representative action” against an employer for any violation of the Labor Code and subjects an employer to statutory penalties ranging from $100 per employee per pay period to $200 per employee per pay period, as well as attorney’s fees.
A representative action is similar to a class action in that the litigation is filed on behalf of the employee and other current and former employees who were aggrieved by the alleged violation, yet the employee does not have to satisfy any of the class action requirements, such as commonality of issues/facts, numerosity of class members, typicality of defenses or claims, and adequacy of another forum/procedure.
Under PAGA, an employee can sue immediately for the Labor Code violations listed in the Labor Code, which include Labor Code Section 226 that sets forth the categories of information that must be included in an itemized wage statement. For those Labor Code sections not set forth in Section 2699.5, the employee must give the employer 33 days to cure the alleged violation.
Labor Code Section 226 is one area in which employers have seen an increase in frivolous litigation regarding technical violations that do not harm or injure the employee. An example of this frivolous litigation is set forth in Elliot v. Spherion Pacific Work, LLC, 572 F.Supp.2d 1169 (2008), in which an employee alleged a cause of action under Labor Code Section 226 because the employer used a truncated name on the wage statement. Specifically, the employer’s name on the wage statement was “Spherion Pacific Work, LLC,” instead of Spherion’s legal name, “Spherion Pacific Workforce, LLC.” The employee did not allege that this truncated version of the employer’s name misled her, confused her, or caused her any injury.
Although the court ultimately dismissed this cause of action through summary judgment, the employer incurred unnecessary legal costs and attorney’s fees to have the cause of action dismissed.
The Spherion case is just one example of the numerous PAGA lawsuits being filed for technical violations under Labor Code Section 226 that do not cause any harm to employees. Another example is a company that was sued for millions of dollars in PAGA penalties and attorney’s fees in Yolo County because the itemized wage statement included only the ending date of the pay period, yet specified the employee was paid on a weekly basis. The April 16, 2014 Los Angeles Daily Journal article titled “An Alternative to Employee Class Actions” documents that PAGA lawsuits have increased more than 400% between 2005 and 2013, given the ease of filing such cases without satisfying class action requirements and the potential financial windfall.
Curb Frivolous Litigation
AB 1506 will help curb this type of frivolous litigation under PAGA with regard to only two parts of Labor Code Section 226, specifically Section 226(a)(6) and 226(a)(8), by allowing an employer 33 days to cure any alleged violation. If the employer cannot cure the violation, then the employee still would be able file a civil action and obtain any unpaid wages, penalties and attorney’s fees. This reform will provide the appropriate balance of allowing an employer to correct unintentional errors without the threat of a multimillion-dollar lawsuit that could put the employer out of business, while still protecting the employee’s ability to obtain accurate information.
Previous Job Creator Bill Signed by Governor
In July, Governor Brown signed AB 323 (Olsen; R-Modesto) which streamlines infrastructure development by extending until January 1, 2020 the current California Environmental Quality Act (CEQA) exemption for certain roadway repair and maintenance projects.
Three job creator bills remain on the Governor’s desk. He has until October 11 to act on the following bills:
- AB 35 (Chiu; D-San Francisco) Creates Affordable Housing Opportunities. Promotes affordable housing by expanding the existing low-income housing tax credit program, making the state better able to leverage an estimated $100 million more in Federal Tax Credits.
- SB 249 (Hueso; D-San Diego) Enhanced Driver’s License. Encourages international trade and tourism by authorizing the Department of Motor Vehicles to issue enhanced driver licenses to U.S. citizens to expedite legal traffic at the border.
- SB 251 (Roth; D-Riverside) Incentivizing Disability Access and Education. Seeks to limit frivolous litigation and claims regarding construction-related accessibility claims by providing businesses that have proactively sought to become ADA compliant with an opportunity to resolve any identified violations as well as provide a tax credit for such improvements.
Staff Contact: Jennifer Barrera