Labor & Employment Law Blog

In Home Depot U.S.A., Inc. v. Superior Court, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders. In so holding, the court rejected Home Depot's contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code "except those for which a civil penalty is specifically provided," and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA).  In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order's seating requirements. Further, the court noted that the civil penalty provision of the wage order states its penalties are "'[i]n addition to any other civil penalties provided by law,'" which the court interprets to mean the the wage order "does not purport to establish a comprehensive scheme of penalties for violations of the wage order."

California courts have yet to squarely address the issue raised by Bright and now by Home Depot as to whether in some circumstances a plaintiff current or former employee could in some circumstances seek both wage order civil penalties and PAGA civil penalties.  Although we do not believe an award of such double penalties would be lawful, we think it is likely plaintiff attorneys will argue based on remarks contained in the Bright and Home Depot cases that such double recoveries are permitted.