Lewis Brisbois attorneys Jeff Ranen, William Sung, and Tyler Johnson defeated a $60 Million PAGA claim advancing a novel theory that a casino's smoking lounge violated various Labor Code health and safety statutes. The PAGA claim is part of a complex lawsuit that involves three distinct legal theories. There are 13 Plaintiffs alleging individual disability discrimination/retaliation claims, there is a wage and hour class action with a putative class of over 1,000 casino dealers, and, relevant to this victory, a case of first impression in which Plaintiffs sought to collect PAGA penalties for an allegedly unlawful smoking lounge in which players gamed.

Plaintiffs originally sought PAGA penalties alleging that the smoking lounge violated Labor Code section 6404.5, which prohibits smoking in any enclosed place of employment. That claim was defeated on the grounds that Labor Code section 6404.5 delegated exclusive enforcement authority to local law enforcement agencies and thus neither the LWDA nor aggrieved employees acting on behalf of the LWDA have the authority to recover PAGA penalties.

Plaintiffs then sought to circumvent Labor Code section 6404.5 by asserting that the smoking lounge violated nine Labor Code health and safety statutes that generally required employers to provide a workplace that is safe and healthy. Lacking any judicial guidance on this case of first impression, the defense filed a Motion to Strike advancing a novel argument that the general duty statutes are preempted by Section 6404.5 under the Williamson doctrine, which provides that where both a general statute and a specific statute purport to regulate the same conduct, the specific statute (Labor Code section 6404.5) controls, and Plaintiffs cannot recover in a way (PAGA penalties) that Labor Code section 6404.5 does not permit. 

After two rounds of briefing and a lengthy hearing, the court sided with the defense and struck the nine health and safety statutes from the lawsuit. This important victory strategically eliminated a major component of this complex case.

Whether it is effectively litigating highly complex class action lawsuits, developing out-of-the-box strategies in novel areas of the law, or providing day-to-day risk-management counseling to employers, Lewis Brisbois' dedicated team of employment attorneys is here to address the needs of employers across the nation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.