378 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 19 Lab. Code § 226(a). A “farm labor contractor” is defined as “any person who, for a fee, employs workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person, or who recruits, solicits, supplies, or hires workers on behalf of an employer engaged in the growing or producing of farm products, and who, for a fee, provides in connection therewith one or more of the following services: furnishes board, lodging, or transportation for those workers; supervises, times, checks, counts, weighs, or otherwise directs or measures their work; or disburses wage payments to these persons.” Lab. Code § 1682(b). 20 Lab. Code § 226(a)(9). 21 In Stewart v. San Luis Ambulance, Inc., No. S246255 (Cal. Jan. 3, 2018), the Supreme Court accepted a request from the Ninth Circuit, 878 F.3d 883 (certifying question), to decide, among other issues, this issue: “Do violations of meal period regulations, which require payment of a ‘premium wage’ for each improper meal period, give rise to claims under section … 226 of the California Labor Code where the employer does not include the premium wage in the employee’s pay or pay statements during the course of the violations?” But then the voters approved Proposition 11, the Emergency Ambulance Employee Safety and Preparedness Act (Gen. Elec. (Nov. 6, 2018), leading the Supreme Court to conclude: “resolution of the questions posed by the Ninth Circuit Court of Appeals is no longer necessary ... to settle an important question of law. … We therefore dismiss consideration of the questions.” 22 Naranjo v. Spectrum Sec. Servs., 40 Cal. App. 5th 444, 474 (2019), aff’d in part, rev’d in part and remanded, 13 Cal. 5th 93 (2022) (failure to pay meal or rest period premiums does not trigger any penalty for untimely wages, because the required extra hour of pay for unprovided breaks is a statutory remedy for employer conduct, not an amount for “labor, work, or service ... performed personally by the person demanding payment”) (citing definition of “wage” in Lab. Code § 200(b)). 23 Naranjo v. Spectrum Sec. Servs., Inc., 13 Cal. 5th 93, 102 (2022), (“The primary issue before us is whether this extra pay for missed breaks constitutes ‘wages’ that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job (id., § 203). We conclude, contrary to the Court of Appeal, that the answer is yes.”). 24 Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1336 (2018) (reversing award of wage statement penalties; rejecting plaintiffs’ argument that “any failure to pay overtime at the appropriate rate also generates a wage statement injury justifying the imposition of wage statement penalties” because it would lead to “an apparent unintentional double recovery”). 25 Naranjo v. Spectrum Sec. Servs., Inc., 13 Cal. 5th 93, 119-120 (2022) (rejecting employer’s reliance on Maldonado because that decision recognized ‘[w]age statements should include the hours worked at each rate and the wages earned’ — not just wages actually paid” (quoting Maldonado, 22 Cal. App. 5th at 1336) (emphases original)). 26 Lab. Code § 226(j). 27 Soto v. Motel 6 Operating, LP, 4 Cal. App. 5th 385, 391-92 (2016) (affirming dismissal of complaint: “vacation pay cannot be fairly defined as ‘gross wages earned’ or ‘net wages earned’ under section 226, subd. (a)(1) or (5) until the termination of the employment relationship. The employee has vested rights to paid vacation or vacation wages during the time of his employment, but these rights do not ripen and become an entitlement to receive the monetary value of the benefit as wages until the separation date.”). See also Mora v. Webcor Constr., L.P., 20 Cal. App. 5th 211 (2018) (affirming dismissal of complaint; employer need not record on wage statements any payment to a union vacation trust fund; the plaintiff did not exercise any control over this money, which was transferred to a trust). 28 Canales v. Wells Fargo Bank, N.A., 23 Cal. App. 5th 1262, 1268, 1271 (2018). 29 Lab. Code § 226(a)(7). 30 Lab. Code § 226(e). 31 Lab. Code § 226(e); see also Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1142 (2011). 32 Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1143 (2011) (affirming dismissal of wage statement claim where plaintiff merely “speculates on the ‘possible underpayment of wages due,’ which is not evident from the wage statements attached to the complaint”). 33 Id. at 1143. 34 Id. (distinguishing cases where injury arose from inadequate wage statements that required employees to engage in discovery and perform mathematical computations to reconstruct time records to see if they were correctly paid); cf. Wang v. Chinese Daily News, Inc., 453 F. Supp. 2d 1042, 1050 (C.D. Cal. 2006), aff’d on other grounds, 623 F.3d 743 (9th Cir. 2010) (wage statements inaccurately listed hours worked and omitted hourly wage); Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 956 (2005) (inaccurate hours on wage statements). 35 Lab. Code § 226(e)(2)(A), (B). 36 Lab. Code § 226(e)(3). In reviewing compliance with these provisions, the factfinder can consider whether the employer, before an alleged violation, adopted and complied with a set of policies, procedures, and practices that fully comply with section 226. The amendment deeming technical violations to cause “injury” were held to “clarify” rather than change the law and thus the amendment could apply retroactively. Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 959 (2016) (Labor Code section 226(e)(2)(B)(i) “clarifies that injury arises from defects in the wage statement, rather than from a showing that an individual experienced harm as a result of the defect”). 37 Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949, 955 (2005) (reversing summary judgment to employer; quoting with apparent approval DLSE Opinion Letter 2002.05.17, at 3, 6) (emphasis in original). 38 See Clarke v. First Transit, Inc., 2010 WL 11459322, at *2 (C.D. Cal. 2010) (PAGA claim); Mays v. Wal-Mart Stores, Inc., 2019 WL 365898, at *5 (C.D. Cal. 2019) (PAGA claim); Jones v. Longs Drug Stores California, Inc., 2010 WL 11508656, at *1 (S.D. Cal. 2010 (PAGA claim). 39 Noori v. Countrywide Payroll & HR Solutions, Inc., 43 Cal. App. 5th 957, 965 (2019) (reversing dismissal of wage statement claim). Meanwhile, on the wage statement, it was sufficient there to use an acronym for the employer’s fictitious business name. 40 Drum v. Saks & Co., 95 F. Supp. 3d 1221, 1225 (S.D. Cal. 2015); McKenzie v. Federal Express Corp., 765 F. Supp. 2d 1222, 1225 (C.D. Cal. 2011).
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