Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 75 G. The “Injury” Requirement For Wage Statement Penalties Is Weakened Prior to 2013, there was substantial dispute whether the language in Section 226(e) that an employee must “suffer injury” to recover the penalties means that only employees suffering actual harm from a wage statement violation can recover. Defendants, arguing that there must be actual harm to “suffer injury,” relied on the definition of “injury” as used in other aspects of California law.367 Defendants also supported their position by pointing out that employees who did not suffer actual injuries could obtain injunctive relief pursuant to Section 226(g), which does not contain language about “suffering injury.” Plaintiffs, by contrast, argued that the term “injury” means simply the violation of one’s legal rights.368 Plaintiffs contended that Section 226 created a right for employees to receive an accurate wage statement, and that right is violated when the employer knowingly provides a defective wage statement. By this logic, any violation of Section 226(a) causes an injury sufficient to trigger penalties under Section 226(e). In a blow to employers, the Legislature amended Section 226, as of 2013, to adopt a pro-plaintiff definition of “injury” for purposes of certain violations. An employee now is deemed to suffer injury if the employer (A) fails to provide a wage statement or (B) fails to provide accurate and complete information and the employee cannot promptly, without reference to other documents or information, determine the following from the wage statement alone: (1) gross or net wages paid during the pay period; (2) total hours worked; (3) piece-rate units earned and rate;369 (4) deductions; (5) pay period; (6) hourly rates and corresponding hours worked at each rates; 367 See, e.g., Steketee v. Lintz, Williams & Rothberg, 38 Cal. 3d 46, 55 (1985) (“The word ‘injury’signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.”); Lueter v. State of Cal., 94 Cal. App. 4th 1285, 1303 (2002) (“‘Injury’refers to the fact of harm suffered by the plaintiff due to the defendant’s conduct.”); San Fran. Unified Sch. Dist. v. W.R. Grace & Co., 37 Cal. App. 4th 1318, 1330 (1995) (“[W]hen injury or damage is the last element of a tort cause of action to occur, the cause of action accrues once any actual and appreciable harm has occurred.”). 368 See, e.g., Black’s Law Dictionary, 466 (4th ed. 1968) (“the injury is the violation of the legally protected interest ... and not necessarily the resulting harm”); Migliori v. Boeing N. Am., Inc., 97 F. Supp. 2d 1001, 1007 (C.D. Cal. 2000) (distinguishing “injury” from “damages” for purposes of res judicata analysis). 369 For discussion on wage statement requirements for piece-rate employers mandated by Labor Code Section 226.2, see Section XI. B. infra,
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