You and Your Employees Can Be Personally Liable for Wage and Hour Violations Under Both PAGA and the FLSA

By Sara A. Bradley, Attorney
September 2017

In a previous article found here, we discuss employer/employee personal liability for wage and hour violations under California Labor Code Section 558.1. In rounding out our discussion on this topic, we investigate California’s Private Attorneys General Act of 2004 (“PAGA”) and the Federal Fair Labor Standards Act (“FLSA”). Both entertain scenarios where individual employees may be liable for wage and hour violations.[1]

California Private Attorneys General Act

            PAGA Generally

PAGA provides a way for an aggrieved employee to pursue civil penalties on behalf of himself, other employees, and the State of California Labor and Workforce Development Agency (“LWDA”) for certain Labor Code violations.[2] It essentially allows a private citizen to act as attorney general given he complies with PAGA’s strict notice, filing, and waiting requirements.[3] The LWDA and aggrieved employee(s) split any civil penalties recovered, with the former receiving 75% of penalties and the latter 25%.[4]

           Personal Liability Under PAGA? It could happen!

Courts are willing to hold a company’s owners, directors, officers, and managing agents personally liable for wage and hour violations under PAGA. In 2005 Justice Moreno raised the issue in his concurrence in Reynolds v. Bement.[5] He said PAGA “authorizes civil penalties for violations of wage laws that include unpaid wages from ‘any employer or other person acting on behalf of an employer,’ a phrase conceivably broad enough to include corporate officers and agents in some cases.”[6]

A federal court in the Northern District of California minced no words about it and answered the liability question with a resounding “yes.”[7] Plaintiff alleged unlawful and unfair wage and hour practices under PAGA pursuant to Labor Code Section 558 against Cjaders Foods, Inc. (“Cjaders”) and four individual defendants who owned/controlled Cjaders.[8]

Cjaders argued according to PAGA the term “employer” did not include agents, executives or shareholders of an employer.[9] Plaintiff argued because the four individual defendants “were acting on behalf of Cjaders in causing the alleged wage and hour violations[,]” PAGA and Section 558 allowed claims against them.[10]

The court agreed with plaintiff, reasoning as follows: First, PAGA’s Section 2699(a) allows an “aggrieved employee to enforce any provision of the labor code that allows a civil penalty” (as Section 558 does).[11] Section 2699(a) also does not restrict liability to an “employer.”[12] Furthermore, Section 558 of the labor code allows a civil penalty and liability against “an employer or a person acting on behalf of an employee.”[13] Thus, “it does not stretch the plain language of PAGA to find a person who acts on behalf of an employer can be held liable if the [enforceable provision] explicitly permits liability against that person.”[14]

The important distinction to the court was that plaintiff alleged each individual defendant “took specific actions on behalf of Cjaders to violate or cause to be violated wage and hour provisions” rather than just alleging they were liable because they owned/controlled Cjaders.[15] Employers and their employees will not be liable under PAGA simply because they are considered owners, officers, directors, or agents of a corporation, but instead, their actions must violate a wage and hour law or result in a wage and hour violation.

Federal Fair Labor Standards Act

Under the FLSA, officers, directors, and managing agents also face liability for wage and hour violations. In Boucher v. Shaw, for example, the Ninth Circuit found a Chairman/CEO, CFO, and person who handled labor and employment matters could be liable for the corporation’s failure to pay wages under the FLSA.[16] The court stated “[w]here an individual exercises control over the nature and structure of the employment relationship, or economic control over the relationship,” that person is an employer under the FLSA and subject to liability.[17]

So What Should You Do?

Take proactive measures. Make sure that you as the owner, officer, director, manager, or agent of the company understand California and federal wage and hour laws and ensure your employees understand them as well. Have procedures in place to consistently re-evaluate current practices for compliance. Where unclear, consult with an attorney to address your concerns, advise compliant policies, and provide training for you and your employees.

About the Author

Sara A. Bradley graduated magna cum laude from the University of San Diego School of Law in 2013 and the University of Notre Dame with a Bachelor of Science in Mathematics in 2002. She most recently practiced law at Morrison & Foerster LLP in San Diego, California. She is also a California-credentialed high school mathematics teacher and taught for several years at the Academy of Our Lady of Peace in San Diego. In her spare time, Sara, her husband, and daughter enjoy being outdoors, and hiking and exploring Southern California.

DISCLAIMER. The content contained herein does not constitute the provision of legal advice and no attorney-client relationship is formed by reading or viewing or responding to this website. Submitting or posting to this website does not create an attorney-client relationship, nor does receiving a response from any submission. Any statements or posts in this website are generalized opinion, not advice on any individual specific circumstances. If you are in need of legal advice, please contact a local attorney.

[1] For a discussion on indemnification, see the August 2017 article regarding California Labor Code Section 558.1.

[2] Cal. Lab. Code § 2699(a).

[3] Cal. Lab. Code § 2699.3.

[4] Cal. Lab. Code § 2699(i).

[5] Reynolds v. Bement, 36 Cal. 4th 1075 (2005), overruled on other grounds by Martinez v. Combs, 49 Cal. 4th 35 (2010).

[6] Id. See also Thurman v. Bayshore Transit Mgmt., Inc., 203 Cal. App. 4th 1112, 1145 (Ct. App. 2012).

[7] Ochoa-Hernandez v. Cjaders Foods, Inc., No. C 08-02073 MHP (N.D. Cal. May 18, 2009); see also Ontiveros v. Zamora, No. Civ. S-08-567 LKK/DAD (E.D. Cal. Feb. 20, 2009).

[8] Ochoa-Hernandez, No. C 08-02073 MHP. Labor Code § 558 states “Any employer or other person acting on behalf of en employer who violates or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty . . . .”

[9] Ochoa-Hernandez, No. C 08-02073 MHP.

[10] Id. (emphasis added).

[11] Id. (emphasis in original quotation). California Labor Code Section 2699(a) states “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.”

[12] Ochoa-Hernandez, No. C 08-02073 MHP.

[13] Id. (emphasis in original quotation).

[14] Id.

[15] Id.

[16] Boucher v. Shaw, 572 F.3d 1087, 1094 (9th Cir. 2009).

[17] Id. at 1091.


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