320 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com § 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA?” Sullivan v. Oracle Corp., 557 F.3d 979, 983 (9th Cir. 2009). 640 Oracle, 51 Cal. 4th at 1206. 641 Ward v. United Airlines, Inc., 9 Cal. 5th 732, 752 (2020). 642 Id. 643 Oman v. Delta Air Lines, Inc., 9 Cal. 5th 762, 776 (2020). 644 Ward, 9 Cal. 5th at 758, 760. 645 Some courts have limited Ward’s breadth. In McPherson v. EF Intercultural Found., Inc., 47 Cal. App. 5th 243 (2020), the Court of Appeal held that California’s vacation pay laws did not extend to some out-of-state employees. McPherson noted that Ward considered overtime laws, not generally all of California’s wage and hour laws. Id. at 260. McPherson then held “[w]e cannot conclude California intended section 227.3—a law that governs the payment of unused vested vacation time when an employee’s employment ends—to apply under the circumstances here: where a nonresident, exempt employee of a non-California employer has periodically performed work within California, has received no California wages, and has paid no California income taxes on any wages earned.” Id. at 272. 646 Bernstein v. Virgin Am., Inc., 3 F.4th 1127 (9th Cir. 2021). 647 Id. at 1133. 648 Id. 649 Id. at 1145. 650 Id. at 1133. 651 Gulf Offshore Logistics, LLC v. Superior Ct. (Norris), 45 Cal. App. 5th 285 (2020). The California Supreme Court granted review and transferred the case to the Court of Appeal for reconsideration following the Ward and Oman decisions, but the initial holdings were upheld, albeit in an unpublished decision. Gulf Offshore Logistics, LLC v. Superior Ct., 272 Cal. Rptr. 3d 356 (2020), review denied (Mar. 24, 2021). 652 Oracle, 51 Cal. 4th at 1207-08. 653 Id. 654 Lab. Code § 558(a). 655 See Lab. Code § 226.7. 656 Lab. Code § 2699(f). 657 “The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” Lab. Code § 1198. 658 Lab. Code § 210(a). 659 Lab. Code § 225.5(a), (b). 660 Under Labor Code section 98(a), the Labor Commissioner can hold a hearing to determine civil penalties due under section 558 against any employer or other person acting on behalf of an employer, including an individual liable under section 558.1. 661 Lab. Code § 1197.1(a)(1) and (2). 662 Lab. Code § 2699(e) and (f). Employers have a limited right to cure certain wage-statement violations before an aggrieved employee may sue under PAGA. Specifically, an employer can cure wage-statement violations as to providing either the inclusive dates of the pay period or the name and address of the legal entity that is the employer. An employer can take advantage of this provision only once for the same violation of the statute during each 12-month period. 663 Gunther v. Alaska Airlines, Inc., 72 Cal. App. 5th 334, 355 (2021) (holding that heightened penalties for an employer’s violation of wage statement statute, rather than default civil penalties under PAGA, apply only where the employer fails to provide wage statements or keep required records; the “choice is not … between a penalty under section 226.3 and no penalty for an inadequate wage statement. Instead, the question is which penalty provision applies—the default penalty in section 2699, subdivision (f) or the heightened penalty under section 226.3”). 664 E.g., Lab. Code §§ 1199, 1199.5 (violations of Lab. Code §§ 1171-1205); Lab. Code § 1197.2 (misdemeanor for employer who willfully fails to pay and has the ability to pay a final court judgment or Labor Commissioner order for all wages due to an employee who, within 90 days of the date that the judgment was entered or the order became final, has quit or been discharged): Lab. Code § 226.6 (misdemeanor fine or imprisonment—in addition to any other penalty provided by law—for employer that knowingly and intentionally violates the provisions of section 226 or aids in violating any provision of section 226). 665 E.g., Lab. Code § 1199(c); Lab. Code § 1175 (violation of Lab. Code § 1174).
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