With March Madness in full swing, we interrupt your crumbling tournament brackets to ensure you're aware of a truly maddening development. California law now makes individuals potentially liable for employer violations of many often-convoluted wage and hour rules.
That's right—individuals, not just companies, may be liable for wage and hour violations.
We mentioned this legislation here last Fall, when it was part of "A Fair Day's Pay Act" (SB 588). We described it there as what it is: an enhancement to the Labor Commissioner's enforcement authority. The bill's introductory summary explained that the "bill would authorize the Labor Commissioner to provide for a hearing to recover civil penalties against any employer or other person acting on behalf of an employer ... for a [wage and hour] violation." The Senate Bill Analysis opined that the bill targeted "willful" wage theft and would give the "Labor Commissioner" additional avenues to enforce its judgments. The Senate Bill Analysis can be found here, and the full text of the bill can be found here.
Even though the limited purpose of the new law is clear, enterprising members of the plaintiffs' bar have recently sought to read the new law as authorizing a private right of action against individual managers. These lawyers have seized upon a legislative oversight. Although 12 of the 13 bill's enactments refer to the Labor Commissioner, the 13th provision—Section 558.1 of the Labor Code—does not expressly mention "Labor Commissioner." These lawyers have seized upon this obvious oversight to argue that Section 558.1 goes further than its 12 companion provisions and somehow creates a private right of action against individuals.
The personal liability language of Section 558.1 is not complex: any employer or "other person acting on behalf of an employer" "may be held liable as the employer for" violations of the directives in the Wage Orders and in various provisions of the Labor Code. Thus, the Labor Commissioner may now hold individuals liable for certain wage and hour violations, including California's big six: unpaid overtime, unpaid minimum wage, denied meal/rest breaks, untimely termination pay, inadequate wage statements, and failure to reimburse for employee business expenses.
The Legislature defines "other person acting on behalf of an employer" as "a natural person who is an owner, director, officer, or managing agent of the employer." The "managing agent" definition mirrors that found in California's punitive damages statute. Under that statute and case law, "managing agents" are all employees who exercise substantial independent authority and judgment in their corporate decision-making such that their decisions ultimately determine corporate policy.
But while this statutory language thus creates the potential for individual liability at the hands of the Labor Commissioner, none of the foregoing statutory language nor anything in the legislative history of the bill's enactment creates a private right of action. As the California Supreme Court has explained, it takes more than statutory silence in a Labor Code provision to create a private right of action: the statute must contain "clear, understandable, unmistakable terms, which strongly and directly indicate that the Legislature intended to create a private cause of action"; and if the statute lacks that language, the statute's legislative history must be examined. Applied here, that analysis would show that the plaintiffs' lawyers are out of line, and should seek their easy pickings elsewhere.
We expect courts to remedy the plaintiffs' interpretive overreaching. Meanwhile, however, the new statute remains significant for high-level managers regardless of who is empowered to enforce it. What's clear is that now, more than ever, employers and their corporate policy-makers may have a personal stake in ensuring that the company's wage and hour house is in order and ensuring that employees are paid properly. Employers would be well-advised to take proactive measures to ensure compliance with California's unique wage and hour landscape, such as auditing current pay practices and policies.
If you would like assistance in ensuring your company's wage and hour compliance, or if have questions regarding the issues raised in this post, then please do not hesitate to contact the authors or any other member of Seyfarth's Labor and Employment Group.
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