Wage and Hour Case Notes

• Publication year: 2022
• Author: By Lauren Teukolsky

WAGE AND HOUR CASE NOTES

By Lauren Teukolsky

Lauren Teukolsky is the owner and founder of Teukolsky Law, A Professional Corporation. She launched Teukolsky Law in 2017 after practicing law for 17 years at some of California's most prestigious civil rights law firms and organizations. Ms. Teukolsky represents employees in all areas of employment law, with a specialty in complex wage-and-hour litigation. She may be reached at lauren@teuklaw.com.

PAGA NOTICE SUFFICIENT EVEN THOUGH IT FAILED TO REFERENCE OTHER AGGRIEVED EMPLOYEES

Santos v. El Guapos Tacos, LLC, 72 Cal. App. 5th 363 (2021)

The Private Attorneys General Act of 2004 (PAGA) requires plaintiffs to provide notice to the employer and to the Labor & Workforce Development Agency (LWDA) before filing suit. The notice must detail the specific provisions of the Labor Code that the employer has allegedly violated, including the facts and theories to support the alleged violation.

In Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804 (2018), the court held that a PAGA notice was deficient where the notice referenced only violations that the employee himself experienced, and made no reference to any violations suffered by any other employees. The court held that "[b] ecause [Khan's] notice expressly applied only to him, it failed to give [LWDA] an adequate opportunity to decide whether to allocate resources to investigate Khan's representative action." The notice also led the employer to believe that only Khan had suffered violations, which did not constitute fair notice of a broader claim.

In Santos, Lourdes Santos and another employee filed a PAGA claim against their employer in 2015. Before filing, they submitted a notice to the LWDA that did not explicitly mention other "aggrieved employees." The trial court granted judgment on the pleadings, relying on Khan to hold that the LWDA notice was inadequate. The appellate court reversed, distinguishing the notice from that in Khan, because it did not refer to "my" or "our" claims, did not allege violations stemming solely from an individual termination, and did not suggest that violations were isolated. Rather, the notice referred to ongoing meal and rest break violations against more than one employee, and described a time-keeping procedure used by all employees to track their time, thus "alerting the LWDA to a potentially sizable employee pool." Because the notice alerted the LWDA and the employer of ongoing Labor Code violations that were not unique to the plaintiffs, "the notice was not deficient for failing to reference other aggrieved employees implicated by the representative action."

CAL. LAB. CODE § 226(A) APPLIES TO FLIGHT ATTENDANTS BASED IN CALIFORNIA, AND IS NOT PREEMPTED, BUT HEIGHTENED 226.3 PENALTIES DO NOT APPLY UNLESS EMPLOYER FAILS TO PROVIDE WAGE STATEMENTS OR KEEP RECORDS

Gunther v. Alaska Airlines, Inc., 72 Cal. App. 5th 334 (2021)

Julie Gunther was a flight attendant based in San Diego who worked for Alaska Airlines. After a bench trial, the court found that Alaska failed to include information on Gunther's itemized wage statements that was required under Cal. Lab. Code § 226(a), including: (1) the total hours worked; (2) the number of piece-rate units earned and the applicable piece rate; and (3) the corresponding pay for each. The court awarded Gunther $4,000 in statutory penalties under § 226(e), and over $25 million in PAGA penalties under § 226.3.

On appeal, Alaska argued that the trial court was required to analyze each pay period to determine whether each flight attendant in the "aggrieved employee" group worked the majority of their time in a state other than California. If so, Alaska argued, a § 226-compliant wage statement was not required for that pay period. Because the

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trial court failed to undertake this per-pay-period analysis, and a PAGA trial would have been unmanageable in any case, Alaska urged reversal.

The appellate court rejected this argument. In Ward v. United Airlines, Inc., 9 Cal. 5th 732 (2020), the California Supreme Court held that flight attendants and other interstate transportation workers are covered by § 226 if they can show that they are: (1) based in California; and (2) do not work primarily in any one state. Id. at 760. Gunther satisfied these requirements because the aggrieved flight attendants were based in California, and Alaska's own analysis showed that they did not work primarily in any one state. The appeals court rejected the notion that the trial court was required to analyze each pay period, instead condoning the trial court's "broader perspective" of analyzing the flight attendants' work "in the aggregate."

Despite affirming the award of statutory penalties under § 226(e), the appellate court nevertheless reversed the award of PAGA penalties under § 226.3. The court agreed with Alaska's argument that the heightened penalties set forth in § 226.3...