Under Lab. Code 226(e), an employee may bring a private action for damages if he suffered “actual injury” from the employer’s knowing and intentional failure to provide proper wage statements. “Actual injury” is shown only if the employee cannot figure out omitted information by a relatively simple calculation involving amounts the wage statement does show. Here, the wage statements omitted the overtime pay rate but showed total overtime pay and the number of overtime hours, so the employee could have easily calculated the overtime pay rate by simple division. No actual injury; hence no damage recovery under Lab. Code 226(e). However, following Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, the decision holds that the plaintiff may nonetheless sue for civil penalties under the Private Attorney General Act, since section 226(e) does not apply to a PAGA suit, and the employee need not prove actual injury or a knowing and intentional failure to comply in order to collect the civil penalties. However, the decision notes that the trial court has the discretion to reduce civil penalties for technical, non-harmful violations.
California Court of Appeal, Third District (Duarte, J.); May 22, 2018; 2018 Cal. App. LEXIS 468