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Limited PAGA Exemption Proposed

California’s ‘Sue Your Boss’ law

By Chris Micheli, August 26, 2020 7:20 am

Senate Bill (SB) 729, by Senator Anthony Portantino (D – Pasadena) was amended on August 25 to create a limited exemption from California’s “Sue Your Boss” law. SB 729 would add Section 2699.7 to the California Labor Code.

Under the Private Attorneys General Act (PAGA), Labor Code Sections 2698, et seq., an individual can file a lawsuit on behalf of the employee and other current or former employees in order to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency for the violation of certain provisions affecting employees.

SB 729 would prohibit an employee from recovering civil penalties from an employer under PAGA for violations of provisions requiring the employer to provide meal and rest breaks, if the employee engaged in remote work as specified in the bill.

New Section 2699.7 would be added to the Labor if SB 729 is enacted. The language of the proposed new section reads as follows:

An employee shall not recover civil penalties from an employer under Section 2699 for violations of any provision of either this code or a wage order of the Industrial Welfare Commission requiring the employer to provide meal and rest breaks, if all of the following conditions are satisfied:

(a)  On or after March 19, 2020, for reasons related to the COVID-19 pandemic, the employee began to work from the employee’s home or other place of residence at the employer’s direction, under an employer policy permitting such remote work, or pursuant to an agreement with the employer.

(b)  The alleged violations occurred in the period beginning with March 19, 2020, and ending December 31, 2022, and are for meal or rest breaks the employer failed to provide to an employee while that employee was working for the employer from home or other place of residence.

(c)  The aggrieved employee does not reside on property owned by the employer or provided by the employer to the employee

As a result, if SB 729 is enacted, there will be a limited term exemption from PAGA for lawsuits concerning meal and rest breaks if specified conditions are met. First, the bill’s provisions apply during the time period March 19, 2020 through December 31, 2022. Second, it applies when the employee is working at home at the employer’s direction due to the pandemic. Third, the allegation is that the employer failed to provide a meal or rest break to the employee while he or she was working at home. Fourth, the employee cannot reside in worker provided housing.

SB 729 will need to be acted upon prior to the Legislature’s scheduled August 31 adjournment.

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