ZB, N.A., and ZIONS BANCORPORATION, Petitioners, v. SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; KALETHIA LAWSON, Real Party in Interest.
S246711
SUPREME COURT
September 12, 2019
Justice Cuéllar authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Kruger, and Groban concurred.
Fourth Appellate District, Division One D071279 and D071376 San Diego County Superior Court 37-2016-00005578-CU-OE-CTL
Under the Private Attorneys General Act of 2004 (PAGA) (
This case concerns a PAGA action seeking civil penalties under Labor Code section 558. Brought by real party in interest Kalethia Lawson, the action named as defendants Lawson‘s employer, ZB, N.A. — with whom she agreed to arbitrate all employment claims and forego class arbitration — and its parent company, Zions Bancorporation (collectively, ZB). Before the enactment of the PAGA, section 558 gave the Labor Commissioner authority to issue overtime violation citations for “a civil penalty as follows: [¶] (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. [¶] (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.” (Id., subd. (a), italics added.) We granted review to decide whether Iskanian controls, and the FAA has no preemptive force, where an aggrieved employee seeks the “amount sufficient to recover underpaid wages” in a PAGA action.
But to resolve this case we must answer a more fundamental question: whether a plaintiff may seek that amount in a PAGA action at all. The Court
What we conclude is that the civil penalties a plaintiff may seek under section 558 through the PAGA do not include the “amount sufficient to recover underpaid wages.” Although section 558 authorizes the Labor Commissioner to recover such an amount, this amount — understood in context — is not a civil penalty that a private citizen has authority to collect through the PAGA. ZB‘s motion concerned solely that impermissible request for relief. Because the amount for unpaid wages is not recoverable under the PAGA, and section 558 does not otherwise permit a private right of action, the trial court should have denied the motion. We affirm the Court of Appeal‘s decision on that ground. On remand, the trial court may consider striking the unpaid wages allegations from Lawson‘s complaint, permitting her to amend the complaint, and other measures.
I.
According to her complaint, Lawson began working for California Bank & Trust (CB&T) in 2013 as an hourly employee. CB&T is now a division of petitioner ZB, N.A. ZB‘s motion to compel arbitration explained that the employee handbook in effect at the time of Lawson‘s hiring included a section entitled “Mandatory Binding Arbitration Policy and Agreement.” A “statement of compliance” distributed with the employee handbook required the employee, by signing, to affirm that she had read that section of the handbook. The statement read: “I understand that by accepting or continuing employment with the Company I agree to use binding arbitration to resolve certain legal claims or controversies with the Company, Zions or Zions Entities, including federal Title VII and state civil rights claims, pursuant to the mandatory binding arbitration policy.”
Lawson electronically acknowledged receipt of the employee handbook and statement of compliance, as well as an updated employee handbook and statement of compliance a year later. Lawson does not contest here that she is bound to arbitration pursuant to the terms of the relevant employee handbook section. The section mandated binding arbitration to resolve “[a]ny legal controversy or claim arising out of [Lawson‘s] employment.” It also contained a “class action” waiver that said: “[C]laims by different claimants against the Company, Zions and Zions Entities or by the Company against different employees, former employees or applicants, may not be combined in a single arbitration. Unless specific state law states otherwise, no arbitration can be brought as a class action (in which a claimant seeks to represent the legal interests of or obtain relief for a larger group) . . . .”
In August 2016, ZB moved the trial court to compel Lawson to individually arbitrate “her claim for victim-specific relief under Labor Code § 558” and stay the civil action. ZB maintained that Lawson‘s employment agreement required her to arbitrate all employment claims on an individual basis. While recognizing the unenforceability of that agreement with respect to “traditional PAGA penalties” under Iskanian, ZB contended the “unpaid wages” Lawson sought, which section 558, subdivision (a)(3) requires be paid to “the affected employee[s],” were something different: “victim-specific relief” that ZB could require Lawson to arbitrate individually under the FAA and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333. In effect, ZB‘s contention was that the “victim-specific relief” that Lawson sought under section 558 was not part of “a standard PAGA action” but remained a “claim . . . subject to individual arbitration,” although the civil penalties available under section 558 were not arbitrable. The trial court generally agreed, bifurcating Lawson‘s action and granting ZB‘s motion to compel arbitration of the “unpaid wages” issue.
But ZB got more than it bargained for in the process. In the trial court‘s view, the “unpaid wages” relief sought in Lawson‘s PAGA claim nevertheless required “representative” adjudication since the “PAGA, by its very nature, is a representative statute.” It therefore ordered the issue to arbitration “as a representative action” for the unpaid wages of all aggrieved ZB employees. ZB responded by filing both an appeal and petition for writ of mandate with the Court of Appeal. After consolidating the two, the appellate court dismissed the appeal, holding that
On the other hand, ZB persuaded the Court of Appeal to issue the writ of mandate, but the court did so on a different ground from the one ZB asserted. The appellate court concluded that Lawson‘s request for unpaid wages under section 558 in fact could not be arbitrated at all. Relying on Thurman v. Bayshore Transit Management (2012) 203 Cal.App.4th 1112 (Thurman), the Court of Appeal interpreted section 558 to expressly include “underpaid wages” within the scope of its “civil penalty” provision. In the appellate court‘s view, an employee could pursue the entire, indivisible civil penalty through the PAGA, and under Iskanian, her employer could not compel that representative PAGA claim to arbitration. Our opinion in Iskanian, it surmised, “made it clear that the distinction between civil penalties and victim specific statutory damages hinges in large measure on whether, prior to enactment of the PAGA, they could only be recovered by way of regulatory enforcement or whether they supported a private right of action.” (Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, 724.) Disagreeing with Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 (Esparza), the Court of Appeal concluded section 558 previously lacked a private right of action. So, a PAGA claim for the unpaid wages included in section 558‘s civil penalty came within Iskanian‘s prohibition on predispute waivers of such claims. The court then issued a writ of mandate commanding the trial court to vacate its previous order and enter a new order denying ZB‘s motion to arbitrate.
We granted ZB‘s petition for review to resolve the split of authority over whether an employer may compel arbitration of an employee‘s PAGA claim requesting unpaid wages under section 558.
II.
When it ordered the trial court to deny arbitration, the Court of Appeal started from Thurman‘s conclusion that section 558‘s amount for unpaid wages is a civil penalty that employees like Lawson can recover under the PAGA. To determine if this interpretation is correct, we begin with a nuanced examination of the PAGA, Labor Code civil penalties, and section 558.
The Legislature enacted the PAGA in 2003 after deciding that lagging labor law enforcement resources made additional private enforcement necessary ” ‘to achieve maximum compliance with state labor laws.’ ” (Iskanian, supra, 59 Cal.4th at p. 379, quoting Arias v. Superior Court (2009) 46 Cal.4th 969, 980 (Arias).) The PAGA therefore
All PAGA claims are “representative” actions in the sense that they are brought on the state‘s behalf. The employee acts as “the proxy or agent of the state‘s labor law enforcement agencies” and “represents the same legal right and interest as” those agencies — “namely, recovery of civil penalties that otherwise would have been assessed and collected by the Labor Workforce Development Agency.” (Iskanian, supra, 59 Cal.4th at p. 380, quoting Arias, supra, 46 Cal.4th at p. 986.) The employee may therefore seek any civil penalties the state can, including penalties for violations involving employees other than the PAGA litigant herself. In Iskanian, we declared unenforceable as a matter of state law an employee‘s predispute agreement waiving the right to bring these representative PAGA claims. Requiring employees to forgo PAGA claims in this way contravenes public policy by “serv[ing] to disable,” through private agreement, one of the state‘s “primary mechanisms” for enforcing the Labor Code. (Iskanian, at p. 383.) We then concluded the FAA did not preempt this rule or otherwise require enforcement of such a waiver in an arbitration agreement. (See id., at pp. 384-389.)
But not all statutory remedies for Labor Code violations are “civil penalties” recoverable in an employee‘s PAGA action. Civil penalties were ” ‘previously enforceable only by the state‘s labor law enforcement agencies’ ” before the PAGA. (Iskanian, supra, 59 Cal.4th at p. 381.) That was because an action for civil penalties ” ‘is fundamentally a law enforcement action designed to protect the public and not to benefit private parties.’ ” (Arias, supra, 46 Cal.4th at p. 986.) Other remedies, such as restitution of unpaid wages, ” ‘were recoverable directly by employees well before’ ” the PAGA.3 (Iskanian, at p. 381.) In addition, civil penalties are ” ’ “additional to actual losses incurred . . . .” ’ ” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104 (Murphy).) They are intended “to punish the employer” for wrongdoing, often ” ‘without
Consider, for example, the remedies available when an employer willfully pays a discharged employee less than the minimum wage in her final paycheck. The employer violates — among other provisions — section 1182.12 for failing to pay her the minimum wage, and section 201 for failing to pay her that wage promptly upon discharge. (See §§ 1182.12, 201; see also Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 867.) The Labor Code entitles the discharged employee to compensatory relief in the form of unpaid wages.4 (See, e.g., § 1194.) In addition, section 1197.1 subjects the employer to a civil penalty of $100 for that pay period (or $250, if the employer has previously failed to pay her the minimum wage). (Id., subd. (a).)
Now consider the enforcement mechanisms available to obtain these remedies. The employee may recover her unpaid wages directly through a private civil action. (§ 1194, subd. (a).) Alternatively, she may file a wage complaint with the Labor Commissioner, seeking administrative relief. (See § 98; Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946 (Palo/Haklar).) Should the Labor Commissioner decide to act on that complaint, the commissioner may “either accept the matter and conduct an administrative hearing” to which the employee is a party, or the commissioner may “prosecute a civil action.” (Palo/Haklar, at p. 946; see also §§ 98, 98.3, 1193.6.) Separate from processing an employee‘s individual wage claim, the Labor Commissioner may also enforce Labor Code requirements by investigating and issuing a citation to the employer through the Division of Labor Standards Enforcement‘s (DLSE) Bureau of Field Enforcement. (See §§ 90.5, 1194.2, 1197.1.) So, the commissioner may pursue a civil action or issue a citation to recover the unpaid wages payable to the employee — just as the employee could recover the wages through her private civil action or a section 98 administrative hearing (Berman hearing). (See §§ 98, 98.3, 1193.6, 1197.1.) The PAGA neither added to nor subtracted from these procedures for securing employees’ unpaid wages.
With respect to civil penalties, however, the landscape was quite different prior to enactment of the PAGA. Before the PAGA was enacted, only the Labor Commissioner could also seek civil penalties against the employer. (See § 1197.1; Iskanian, supra, 59 Cal.4th at p. 378.) Now, the PAGA makes
So how do we map this distinction between civil penalties and statutory damages onto our understanding of the relief available under section 558? The Legislature enacted section 558 as part of the Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999. (Stats. 1999, ch. 134, § 14; see, e.g., Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 434.) The act sought to restore and protect the eight-hour workday (see § 510) and overtime pay requirements. (See, e.g., Assem. Com. on Appropriations, Analysis of Assem. Bill No. 60 (1999-2000 Reg. Sess.) as amended Mar. 22, 1999, pp. 1-4; Bearden, at p. 434.) Through section 558, the Legislature authorized the Labor Commissioner to issue citations, including an assessment of civil penalties, for overtime and other workday violations. (See Legis. Counsel‘s Dig., Assem. Bill No. 60 (1999-2000 Reg. Sess.) 5 Stats. 1999, Summary Dig., p. 62.) Under section 558, subdivision (a), any employer who violates these provisions “shall be subject to a civil penalty as follows: [¶] (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. [¶] (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.” (Italics added.) The next paragraph directs that “[w]ages recovered pursuant to this section shall be paid to the affected employee.” (§ 558, subd. (a)(3).) For clarity, we will refer to section 558‘s fixed dollar amount ($50 or $100) as its “fixed amount” and the “amount sufficient to recover underpaid wages” as the “amount for unpaid wages” or “unpaid wages.”
The amount of unpaid wages recovered through section 558 will vary by employee. The crux of the parties’ dispute concerns whether this employee-specific amount is the kind of “civil penalty” the PAGA and Iskanian contemplated the employee pursuing on the state‘s behalf — and whose recovery Iskanian thus immunized from predispute waivers in arbitration agreements.
III.
Initially, ZB argues that not all civil penalties are created equal. ZB posits that the PAGA may well permit employees to recover two distinct types of
We agree in part with Lawson: section 558 lacks a private right of action. An aggrieved employee can make use of section 558‘s remedy only when she acts as the state‘s proxy — and that‘s a role she can play only through a PAGA action. Nevertheless, a close, contextual analysis of the statutory scheme reveals that the amount for unpaid wages referenced in section 558 is not part of that section‘s civil penalty and is not recoverable through a PAGA action. Instead, as ZB says, this part of a section 558 citation represents compensatory damages. Section 558, in other words, authorizes only the Labor Commissioner to issue a citation that includes both a civil penalty and the same unpaid wages Lawson can alternatively recover under section 1194 through a civil action or an administrative hearing. But section 2699, subdivision (a) does not authorize employees to collect section 558‘s unpaid wages through a PAGA action. This reading best harmonizes section 558 with the procedural provisions in section 1197.1, with analogous remedies elsewhere in the Labor Code, and with the broader enforcement scheme for unpaid wages. It also fits with the understanding of the agency in charge of issuing these citations, and with the relevant legislative history.
A.
We review the Court of Appeal‘s interpretation of sections 2699, subdivision (a) and 558 de novo. ( United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1089 (United Riggers).) Statutory interpretation requires us “to ascertain and effectuate the intended legislative purpose.” (Ibid.) We consider the provisions’ language in its “broader statutory context” and, where possible, harmonize that language with related provisions by interpreting them in a consistent fashion. (Ibid.) If an ambiguity remains after this preliminary textual analysis, we may consider extrinsic sources such as legislative history and contemporaneous administrative construction. (See id. at p. 1093; Murphy, supra, 40 Cal.4th at p. 1103.) Because statutes governing employment conditions tend to have remedial purposes, we “liberally construe” them “to favor the protection of employees.” (Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 262 (Augustus); accord, Murphy, supra, 40 Cal.4th at p. 1103; see also Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 340.)
Lawson offers what appears to be, at first glance, a plausible reading of the statute. Subdivision (a) of section 558 uses a familiar structure: identifying a class (“civil penalty“) then using a colon to introduce the members of that class; or, alternatively, identifying a term then using a colon to introduce that term‘s definition. Under this reading, “civil penalty” is the class of remedy, while the fixed amount and unpaid wages are members of that class: the employer “shall be subject to a civil penalty as follows: [¶] . . . fifty dollars ($50) . . . in addition to an amount sufficient to recover underpaid wages.” (§ 558, subd. (a)(1).) The lack of a comma between the fixed amount and the amount for unpaid wages tends to support this reading.
But other language in the statute gives us reason to doubt Lawson‘s construction. Section 558, subdivisions (a)(1) and (2) state that the “civil penalty” is ”in addition to an amount sufficient to recover underpaid wages.” (Italics added.) What “in addition to” appears to indicate is that these provisions subject the employer to a civil penalty on top of, not including, an amount meant to compensate for unpaid wages. Moreover, the “[w]ages recovered” through that amount “shall be paid to the affected employee.” (§ 558, subd. (a)(3).) It is not unheard of for the state to direct payment of civil penalties to private citizens — this is precisely what the PAGA authorizes by awarding aggrieved employees 25 percent of civil penalties recovered. Yet this directive could suggest the unpaid wages address the injury to the employee, compensating her for what she‘s lost, whereas civil penalties address the conduct of the employer and so typically redound primarily to the state. In Murphy, we suggested that where an ambiguous Labor Code provision can plausibly be categorized as either employee-focused or employer-focused, the former understanding better reflects the principle of interpreting such provisions broadly in favor of protecting employees. (See Murphy, supra, 40 Cal.4th at p. 1104.) Just as Lawson‘s reading finds support
Indeed, a closely related statute deploys precisely the same construction — “in addition to an amount sufficient to recover underpaid wages” — to introduce compensatory damages for unpaid wages, not civil penalties. Section 1197.1 sets out the procedures for issuing, contesting, and enforcing judgments for citations issued under section 558. (See §§ 558, subd. (b), 1197.1.) That section also provides its own civil penalties, analogous to section 558‘s, for minimum wage violations. According to section 1197.1‘s terms, an employer who fails to pay minimum wage “shall be subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable penalties imposed pursuant to Section 203 as follows: [¶] (1) For any initial violation that is intentionally committed, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee is underpaid. This amount shall be in addition to an amount sufficient to recover underpaid wages, liquidated damages pursuant to Section 1194.2, and any applicable penalties imposed pursuant to Section 203.” (§ 1197.1, subd. (a)(1), italics added.)
Section 1197.1 is remarkably similar in structure to section 558. Like section 558, section 1197.1 authorizes the Labor Commissioner to issue a citation that includes a fixed component and an underpaid wages component (and also adds liquidated damages and statutory penalty components). Section 1197.1 follows section 558 in providing for a graduated civil penalty system for initial and subsequent violations.5 As in section 558, section 1197.1 requires that amounts beyond its fixed component “be paid to the affected employee.” (Id., subd. (a)(3).) And citations under sections 558 and 1197.1 share the same procedures for issuance, contest, and enforcement. (See § 558, subd. (b); compare ibid. with § 1197.1, subd. (b).)
Unlike section 558, section 1197.1‘s punctuation and parallelism make clear that the underpaid wages component of its citation functions as relief in addition to civil penalties. Yet the provisions’ overall similarities in structure and language tend to support a conclusion that the Legislature‘s broad purpose was essentially the same in section 558. (See Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161
Admittedly, in some respects the analysis of section 1197.1 could conceivably cut the other way. Although distinguishing the unpaid wages section 558 references from its civil penalty is consistent with the statute‘s language, why would the Legislature communicate somewhat more obliquely in that statute a delineation made clear in section 1197.1? But Lawson gives us no reason to consider overtime violations “unique” relative to minimum wage violations, so we have no basis to conclude that the Legislature treated unpaid wages as a civil penalty in one context but not the other. (See United Riggers, supra, 4 Cal.5th at p. 1091.) In these circumstances, we think certain quirks reflected in the statutes’ distinct legislative histories, rather than any difference in underlying purpose, explains the discrepancy. When the Legislature added section 558 to the Labor Code in 1999, it included both the fixed amount and the amount for unpaid wages. Meanwhile, section 1197.1 as originally enacted, before it was amended in 2011, included only a fixed component in its citation.6 A legislature incrementally accomplishing what it has previously instituted all at once might well express the same concept with more clarity. (See United Riggers, supra, 4 Cal.5th at p. 1093 [“Different bills, drafted by different authors, passed at different times, might well use different language to convey the same basic rule, so the absence of an express limit in section 8814 need not imply a departure in meaning from other like statutes“].) And, of course, the Legislature amended section 1197.1 to add unpaid wages and distinguish them from civil penalties years after the PAGA‘s passage, when the importance of differentiating between the two was evident. In contrast, section 558‘s enacting Legislature likely did not foresee the ramifications of failing to emphasize the dual nature of section 558‘s remedy.
Another reason cuts even more decisively in favor of treating the amount for unpaid wages as something other than civil penalties: its relationship with section 1197.1‘s procedural provisions. We must harmonize related statutes with each other “so that all parts of the statutory scheme are given
explains that the commissioner may issue a citation when she or he
Reading the two statutes together supports a straightforward conclusion: the citations issued under
One final aspect of the Labor Code‘s remedial scheme also cuts against treating unpaid wages in
Accordingly, what we conclude is that
A contemporaneous internal DLSE memorandum on the new law further supports our interpretation. The Labor Commissioner‘s memorandum characterized the unpaid wages as the same compensatory relief already available to employees through other means. A premise of its analysis was that
Deeming the unpaid wages amount to be a civil penalty despite the existing enforcement mechanisms for those wages cannot be squared with the understanding of that term under the PAGA. Civil penalties are an interest of the state. Employees could not recover them until the PAGA authorized aggrieved employees to do so as agents of the state. In contrast,
B.
Lawson takes a different view of
Yet reading the relevant provisions in context, it becomes clear that unpaid wages the Labor Commissioner recovers through
Lawson also stresses the Legislature‘s presumed goals of increasing the government‘s authority to enforce existing and newly enhanced overtime protections and deterring employer violations of those protections. According to her, we must read the amount for unpaid wages as a civil penalty in light of these purposes. (See Home Depot, U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 225 [“ ‘Civil penalties are inherently regulatory, not remedial,’ and are intended to secure obedience ‘to statutes and regulations validly adopted under the police power’ ”].) Yet even compensatory relief intended “first and foremost to compensate employees for their injuries” (Murphy, supra, 40 Cal.4th at p. 1111) may have an “incidental behavior-shaping purpose” (id. at p. 1110). That the Legislature or Labor Commissioner believed the amount for unpaid wages would serve a compliance function does not necessarily make it a civil penalty.
Nor do we find the conclusion we have reached — that unpaid wages under
Yet there is no question that nonparty employees may “invoke[e] collateral estoppel” in the future, “us[ing] the judgment against the employer to obtain remedies other than civil penalties for the same Labor Code violations.” (Id. at p. 987.) This limited, non-mutual issue preclusion is permissible because the purpose of the underlying PAGA action itself is “to protect the public, and the potential impact on remedies other than civil penalties is ancillary to the action‘s primary objective.” (Ibid.) And our holding today tracks this distinction in Arias between civil penalties and additional remedies available under the Labor Code.
Finally, Lawson contends that unpaid wages recovered under
IV.
We now address the consequences of our holding for ZB‘s motion to compel arbitration. Iskanian established an important principle: employers cannot compel employees to waive their right to enforce the state‘s interests when the PAGA has empowered employees to do so. But for Iskanian to apply, the state must in fact have delegated enforcement of its interests to private citizens. The Legislature used the PAGA to delegate enforcement of civil penalties. In contrast, we now hold that the
When the Court of Appeal determined that the motion to compel arbitration should have been denied, it was operating on the faulty premise that
Given this conclusion, ZB has suggested the trial court strike from the complaint Lawson‘s allegation requesting unpaid wages. (See
V.
An employee‘s predispute agreement to individually arbitrate her claims is unenforceable where it blocks an employee‘s PAGA claim from proceeding. But a PAGA claim does not include unpaid wages under
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.