Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 77 (3) piece-rate units earned and rate;371 (4) deductions; (5) pay period; (6) hourly rates and corresponding hours worked at each rates; (7) the employer’s name and address;372 (8) the employee’s name; and (9) the employee’s employee identification number or the last four digits (only) of the employee’s social security number. Following this amendment, an employer can no longer argue that employees must individually demonstrate that they suffered actual injury resulting from a violation of Labor Code section 226(a). That argument previously had been a very potent weapon when opposing certification of such claims.373 H. The Requirement That Violations Be “Knowing And Intentional” The remaining dispute over the construction of Section 226 concerns the meaning of the phrase “knowing and intentional.” This standard appears, on its face, to differ from the standard for awarding waiting time penalties under Labor Code section 203, which is mere “willfulness.” Courts previously held that, if an employer is conscious that it committed an act, and if the employer lacks a reasonable basis for believing the act is lawful, then the act is “willful” for purposes of Section 203 even where the employer lacked bad faith or an intention to break the law.374 In 2013, an amendment to Section 226 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 226.375 371 For discussion on wage statement requirements for piece-rate employers mandated by Labor Code Section 226.2, see Section XI. B. infra, 372 See Noori v. Countrywide, 43 Cal. App. 5th 957 (2019) (collecting cases and clarifying that, under California law, use of a truncated name on wage statements may not constitute a violation). 373 The Court of Appeal held that the 2013 amendment applies retroactively because it “merely clarifies existing law.” Lubin v. Wackenhut Corp., 5 Cal. App. 5th 926, 959-60 (2016). Thus, even for claims accruing before 2013, injury is presumed where the wage statement does not accurately set forth the information required by the statute. 374 Barnhill v. Robert & Saunders Co., 125 Cal. App. 3d 1, 7 (1981). 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);
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