208 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com violations of the Industrial Welfare Commission Wage Orders and sections 203, 226, 226.7, 1193.6, 1194, or 2802 of the Labor Code.1002 Employers have argued, based on the plain reading of the statute, section 558.1 does not confer a private right of action, and only the Labor Commissioner can enforce this statute.1003 Plaintiffs, however, have successfully used this statute to pursue Labor Code claims against individuals.1004 It remains to be seen how appellate courts will interpret section 558.1. The few decisions to consider it have largely taken a literal view of the statute. They have held that owners, directors, and managing agents are liable under section 558.1 only if they, acting on behalf of the employer, either (i) had personal involvement in the alleged Labor Code violations or (ii) had sufficient participation in the activities of the employer—including, for example, over those responsible for the alleged wage and hour violations—such that they contributed to, and thus “caused” the violations.1005 1002 Cal. Lab. Code § 558.1. 1003 Bowan v. Burnt End LLC, 2018 WL 485961, at *6 (C.D. Cal. Jan. 17, 2018) (declining to rule on whether a private right of action to sue exists under Labor Code section 558.1, because the allegations against the individual defendants were sufficient to state claims against them as “employers” under the Wage Orders). 1004 Bloomquist v. Covance, Inc., 2017 WL 1735170, at *3 (S.D. Cal. May 4, 2017) (“Section 558.1(a) provides a right of action against any employer, or “other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802.”); McClain v. PQ Beverly Hills, Inc., 2017 WL 1250978 (C.D. Cal. Jan. 13, 2017) (refusing to find that individual was a sham defendant because individuals may be held liable pursuant to Labor Code section 558.1). 1005 Usher v. White, 279 Cal. Rptr. 3d 281 (Cal. Ct. App. 2021) (affirming dismissal of wage and hour claims against an individually named owner of a company in a misclassification action because the owner did not participate in the decision to classify plaintiffs as independent contractors, and did not otherwise participate in the alleged misconduct).
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