Wage Law

The Second District Court of Appeal published an opinion on Monday which reversed, on a writ petition, a trial court's order striking "statutory penalties" in a case where the plaintiff chose not to pursue remedies under the Labor Code Private Attorneys General Act of 2004. Dunlap v. Superior Court (2006) __ Cal.App.4th __ (B185247) follows the precedent set in the Caliber Bodyworks case, and makes it even more abundantly clear that employees need not follow PAGA's administrative procedures as long as they are not seeking PAGA civil penalties which would otherwise only be available to the Labor Commissioner.

Plaintiff Omar Dunlap, a former employee of defendant Bank of America, N.A. (“Bank”), seeks a writ of mandate directing the trial court to vacate its order granting the Bank’s motion to strike certain portions of Dunlap’s first amended class action complaint and to enter an order denying the motion to strike. The essential issue presented is whether the trial court properly struck Dunlap’s claims for statutory penalties on the ground he failed to exhaust his administrative remedies in accordance with the Labor Code Private Attorneys General Act of 2004 (PAG Act) (Lab. Code, § 2698 et seq.). Dunlap’s second through fifth causes of action, which are at issue herein, did not seek any penalties which previously were recoverable only by the Labor and Workforce Development Agency (LWDA). The only penalties being sought therein were various statutory penalties, which penalties already were recoverable by employees under the Labor Code prior to the adoption of the PAG Act. Therefore, Dunlap was not required to comply with the PAG Act’s administrative prerequisites to filing suit before pursuing statutory penalties in said causes of action. Accordingly, the trial court erred in granting the motion to strike. We grant the relief requested.

The opinion is a must read for employees' lawyers, as well as the few defense lawyers who have yet to review the cases and statutes, and continue to make the absurd contention that a party cannot seek claims for wages or penalties unless they try first to invoke the PAGA. The full opinion can be downloaded here in pdf or Word format.

We can't help but wonder if this is the case that all of those Paul Hastings lawyers kept referring to when they told trial judges and plaintiffs lawyers that the Court of Appeal was about to rule in their favor on the PAGA exhaustion issue. We think it is. If there is another, we'll believe it when we see it. For now, we simply congratulate Mark Yablonovich, Marc Primo and Shawn Westrick for their excellent work on the writ petition.

Isn't it interesting, too, that the employers who screamed bloody murder about the enactment of the PAGA are now complaining that employees are not using it in their lawsuits?