Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 77 Courts have thus begun to flesh out the meaning of the phrase “knowing and intentional” in the context of Section 226. However, employers still lack clear guidance as to the application of the “knowing and intentional” standard, because the defendants in many of the reported cases were alleged to have been aware that their wage statements were not in compliance and to have done nothing to fix them. It is less clear how the standard applies where an employer believes that their wage statements are accurate and has a reasonable basis for that position. In any event, the 2013 amendment clarified that a “knowing and intentional failure” will not include an isolated and unintentional payroll error due to a clerical or inadvertent mistake. The amendment also provided that the fact finder can consider whether the employer, prior to an alleged violation, has adopted and complied with a set of policies, procedures, and practices that fully comply with Section 226.375 be); Furry v. E. Bay Publ’g, LLC, 30 Cal. App. 5th 1072, 1085 (2018) (“Numerous other courts considering the issue have rejected a good faith defense to Labor Code section 226, because it stands contrary to the often repeated legal maxim: ignorance of the law will not excuse any person, either civilly or criminally.”). 375 A violation of Labor Code section 226(a) for failure to provide accurate itemized wage statements triggers PAGA civil penalties even though the plaintiff cannot satisfy the “injury” or “knowing and intentional” requirements to recover statutory penalties under Section 226(e). Lopez v. Friant & Assocs., LLC, 15 Cal. App. 5th 773, 788 (2017) (“a plaintiff seeking civil penalties under PAGA for a violation of section 226(a) does not have to satisfy the ‘injury’ and ‘knowing and intentional’ requirements of section 226(e) (1).”); Raines v. Coastal Pac. Food Distributors, Inc., 23 Cal. App. 5th 667 (2018) (same); see also McKenzie v. Federal Express Corp., 765 F. Supp. 2d 1222 (C.D. Cal. 2011) (judgment entered against defendant for PAGA penalties where violation under Section 226 is established; injury need not be shown).
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