Litigating California Wage & Hour and Labor Code Class Actions

passage, then the employee could still recover such statutory penalties without complying
with the administrative prerequisites of PAGA. 251
Although not at issue in the Caliber Bodyworks decision, the court’s holding that statutory
penalties differ from “civil penalties” arguably expanded the scope of PAGA beyond what
had broadly been understood. PAGA created a new civil penalty for every section of the
Labor Code that did not previously provide for a “civil penalty.” 252 If statutes that always
provided for a statutory penalty (e.g., Labor Code Section 203) are not statutes that provide
for a “civil penalty,” then an employee arguably can recover civil penalties in addition to
the penalties already available under those statutes.
On the other hand, the Caliber Bodyworks decision leaves open the possibility that no new
civil penalty is created for those Labor Code provisions that do not themselves provide for a
civil penalty, but for which civil penalties may be recovered under a separate Labor Code
provision. 253 Furthermore, even if it is theoretically possible to obtain an award of civil
penalties on top of statutory penalties for the same violation, courts may exercise discretion
not to award double penalties pursuant to Labor Code Section 2699(e)(2), which allows a
court not to award a penalty where doing so would be “unjust, arbitrary and oppressive, or
confiscatory.”
C. Pursuing PAGA Claims Collectively Without Class Certification
PAGA provides very little procedural guidance as to how an “aggrieved employee” is to
seek penalties on behalf of other aggrieved parties. Given that the statute does not ever
require that the other “aggrieved parties” consent to a suit being brought on their behalf, a
dispute arose whether a party seeking to use PAGA to sue on behalf of aggrieved parties
who did not actively join the action as parties would need to satisfy the requirements for
class certification under Code of Civil Procedure Section 382.
In Arias v. Superior Court, 254 the California Supreme Court held that there is no requirement
that a party seeking to sue on behalf of other aggrieved parties under PAGA must first
obtain class certification. Rather, the employee bringing the issue stands in the shoes of
the Labor Commissioner and may seek to recover penalties in essentially the same manner
as the Labor Workforce Development Agency (“LWDA”). The LWDA may pursue penalties
251
252
253
254
Id. at 377-78. The Second Appellate District reached the same result again in Dunlap v. Superior Court, 142 Cal. App.
4th 330 (2006).
Lab. Code § 2699(f).
See, e.g., Lab. Code § 256 (providing a separate civil penalty previously recoverable only by the DLSE for violations of
Labor Code Section 203); Lab. Code § 210 (providing a separate civil penalty recoverable only by the DLSE for
violations of Labor Code Sections 204, 204b, 204.1, 204.2, 205, 205.5, and 1197.5).
46 Cal. 4th 969 (2009).
Seyfarth Shaw LLP | www.seyfarth.com Litigating California Wage & Hour Class Actions (12th Edition) 59