United States District Court Judge Susan Illston (Northern District of California) denied certification in a suit by security guards alleging, among other things, failure to provide adequate rest breaks and failure to provide adequate wage statements. Temple v. Guardsmark LLC, 2011 WL 723611 (N.D.Cal. Feb 22, 2011). The rest break analysis was not particularly controversial. The Order suggests that the defendant had a facially lawful policy and a large number of declarants supporting its practices. The Court also agreed with defendant's observation that "even if plaintiffs have isolated one general question of whether the narrow California-specific policy displaced the general, national always-on-duty [policy], that question does not have a common answer." Slip op., at 6.
The problematic portion of the Opinion concerns the wage statement claim. There is no mention anywhere that the wage statement claim is purely derivative of a PAGA claim. But the Court seems to impose an administrative exhaustion claim on Labor Code section 226:
California Labor Code Section 226(a) requires wage statements to show “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.” California law also requires that employees be paid double their regular rate of pay for every hour worked over twelve hours in a single day. Cal. Labor Code § 510. Finally, California requires that an “aggrieved employee or representative ... give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation,” before bringing a civil action based on violation of Section 226(a) of the Labor Code. Cal. Labor Code §§ 2699.3, 2699.5.
Slip op., at 7. It is settled law in California that PAGA did not displace any civil actions that could have been brought prior to its passage. And there is no reason to conclude that PAGA requires LWDA exhaustion for anything other than PAGA claims. It is unclear from the Order why this issue is discussed in this way. It may be that the plaintiff attempted to circumvent a statute of limitations issue by claiming that a PAGA claim for other violations gave sufficient notice of the wage statement claim to permit relation back to the filing of an earlier complaint. Whatever the case, the Order is dangerously unclear and incorrectly suggests an exhaustion requirement under 226 that does not exist.