On December 1, 2021, the California Court of Appeal (4th District) issued its decision in Gunther v. Alaska Airlines, Inc., Case No. D076762, holding that heightened penalties for wage statement violations under Labor Code Section 226.3 are available only where an employer fails to provide a wage statement or keep required records at all—not in a run-of-the-mill case where the wage statement is merely inaccurate.
The Private Attorneys General Act (PAGA) permits aggrieved employees to recover civil penalties specified by the Labor Code that previously only the Labor Commissioner could recover. Cal. Lab. Code § 2699(e)(1). Additionally, for any provision of the Labor Code that does not specify a civil penalty, PAGA permits employees to seek a “default” penalty of up to $100 for each aggrieved employee per pay period for an initial violation and up to $200 for each aggrieved employee per pay period for a subsequent violation. Id. § 2699(f)(2). Gunther held that if a PAGA plaintiff proves that the employer provided inaccurate wage statements, the default penalty applies.
Labor Code Section 226(a) sets forth nine items of information that employers must accurately list on wage statements. Section 226.3 provides a penalty of up to “[$250] for an initial citation and [$1,000] for a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226” (emphasis added). This...
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