Litigating California Wage & Hour and Labor Code Class Actions

First, there has been a substantial dispute whether the language in subsection (e) that an employee
must “suffer injury” to recover the penalties means that only employees suffering actual harm from
a wage statement violation can recover. Defendants, arguing that there must be actual harm to
“suffer injury,” rely on the definition of “injury” as used in other aspects of California law. 211
Defendants also support their position by pointing out that employees who did not suffer actual
injuries could obtain injunctive relief pursuant to Labor Code Section 226(g), which does not contain
language about “suffering injury.”
Plaintiffs, by contrast, argue that the term “injury” is simply the violation of one’s legal rights. 212
Plaintiffs argue that Section 226 creates a right for employees to receive an accurate wage
statement, and that right is violated when the employer knowingly provides a defective wage
statement. By this logic, any violation of Section 226(a) causes an injury sufficient to trigger
penalties under Section 226(e).
Recent decisions have ruled for defendants. The California Court of Appeal found that the lack of
certain information on a wage statement, by itself, does not constitute injury under Section 226. 213
The Ninth Circuit Court of Appeals has also reached the same result. 214 And the California
Supreme Court decision of Meyer v. Sprint Spectrum, L.P., 215 provides some support for employers
on the issue of the level of damages needed for an employee to bring a 226 claim. While not an
employment case, Meyer held that damages alleged by the representative plaintiff in a consumer
class action must be real and not merely theoretical. The court specifically rejected the notion that
just being subject to an unlawful practice equates to being injured by the practice. 216 While this
reasoning could be helpful to employers in wage statement cases, it remains to be seen whether
courts will apply the same logic to such matters.
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212
213
214
215
216
See, e.g., Steketee v. Lintz, Williams & Rothberg, 38 Cal. 3d 46, 55 (1985) (“The word ‘injury’ signifies both the
negligent cause and the damaging effect of the alleged wrongful act and not the act itself.”); Lueter v. State of Cal., 94
Cal. App 4th 1285, 1303 (2002) (“‘Injury’ refers to the fact of harm suffered by the plaintiff due to the defendant’s
conduct.”); San Fran. Unified Sch. Dist. v. W.R. Grace & Co., 37 Cal. App. 4th 1318, 1330 (1995) (“[W]hen injury or
damage is the last element of a tort cause of action to occur, the cause of action accrues once any actual and
appreciable harm has occurred.”).
See, e.g., BLACK’S LAW DICTIONARY 466 (4th ed. 1968) (“the injury is the violation of the legally protected interest . . . and
not necessarily the resulting harm”); Migliori v. Boeing N. Am., Inc., 97 F. Supp. 2d 1001, 1007 (C.D. Cal. 2000)
(distinguishing “injury” from “damages” for purposes of res judicata analysis).
Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1143 (2011) (plaintiff’s claim that he suffered a “mathematical injury”
because his pay statements “required him to add up his overtime and regular hours and to ensure his overtime rate of
pay is correct” is ”not the type of mathematical injury that requires ‘computations to analyze whether the wages paid in
fact compensated [him] for all hours worked.’” (quoting Jaimez v. Daiohs U.S.A., Inc., 181 Cal. App. 4th 1286 (2010));
see also, Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal., Nov. 28, 2011) (relying on Price in granting
summary judgment for employer, and noting that mathematical injury was insufficient to establish an inaccurate wage
statement claim). .
Villacres v. ABM Industries Inc., 384 F. App’x 626, 627-28 (9th Cir. 2010) (holding § 226, violation does not constitute
injury under California law).
45 Cal. 4th 634 (2009).
Id. at 641.
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