Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 207 the scope of their agency. (Reynolds, at p. 1086.) The opinion should not be read more broadly than that.993 B. Individual Liability for Civil Penalties As noted, Reynolds left open the possibility that individual supervisors could be held liable for civil penalties.994 In 2018, in Atempa v. Pedrazzani, 995 the California Court of Appeal held that a corporate employer’s owner was subject to civil penalties under sections 558(a) and 1197.1(a). Atempa held that the “unambiguous language of the statutes at issue applies to Pedrazzani as an ‘other person’ subject to the civil penalties.”996 Under section 558(a), an employer “or other person acting on behalf of the employer” who violates the state’s applicable overtime laws shall be subject to a civil penalty.997 Similarly, section 1197.1(a) provides that an employer “or other person acting either individually or as an officer, agent, or employee of another person” who pays or causes to pay an employee less than the state’s applicable minimum wage shall be subject to a civil penalty.998 The appellate court in Atempa rejected the individual defendant’s appeal that he could not be held individually liable for civil penalties and attorneys’ fees under the Labor Code as a matter of law. Instead, it held that sections 558(a) and 1197.1(a) “expressly allow for the recovery of such civil penalties from an officer/agent of the corporate employer” and these civil penalties and attorneys’ fees could be recovered by plaintiffs through a PAGA representative action.999 Atempa further held that in this inquiry, the identity of the employer (including the employer’s business structure) is irrelevant “for purposes of recovering such civil penalties from the employer’s agent[.]”1000 Rather, a “sufficient showing that the officer/agent was responsible for the underlying wage violation” is the applicable standard.”1001 Further expanding individual liability for wage and hour claims is Labor Code section 558.1, which provides that an individual who is an “owner, director, officer, or managing agent of the employer” may be personally liable for 993 Id. at 66. The Court of Appeal in Futrell v. Payday California, Inc., 190 Cal. App. 4th 1419 (2011), held that, because Wage Order 12 and Wage Order 14 use identical language to define the terms “employ,” “employee” and “employer,” the Supreme Court’s holding in Reynolds that applied Wage Order 14’s definition of “employment” also applies to Wage Order 12. Id. at 1429. 994 Reynolds, 36 Cal. 4th at 1094 (“the Private Attorneys General Act … in time, may provide workers with a mechanism for recovering unpaid overtime wages through private enforcement of section 558, which authorizes civil penalties for violations of the wage laws that include unpaid wages from ‘any employer or other person acting on behalf of an employer,’ a phrase conceivably broad enough to include corporate officers and agents”). The California Supreme Court since, however, has held that the unpaid wages remedy under Section 558(a)(3)—as opposed to the penalties available under Section 558(a)(1)-(2)—is not a civil penalty and thus is not recoverable through a PAGA action. ZB, N.A. v. Superior Court, 8 Cal. 5th 175 (2019). 995 27 Cal. App. 5th 809 (2018). 996 Id. at 825. 997 Id. at 811. 998 Id. 999 Id. at 812 and 822. 1000 Id. at 822. 1001 Id.
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