[co-author: Jennifer McDermott]
On October 7, 2021, the California Court of Appeal (4th District) issued its decision in Quinonez v. Payless 4 Plumbing, Inc., Case No. E074467, clarifying what allegations in a notice letter to the Labor and Workforce Development Agency (LWDA) trigger a right to cure under Labor Code Section 2699.3(c). If an employer elects to cure under Section 2699.3(c), the employee must respond to the employer’s cure notice before filing a civil lawsuit under the Private Attorneys General Act (PAGA). Section 2699.3(a), however—which applies to alleged violations of the Labor Code provisions identified in Section 2699.5—does not provide a similar cure option.
The question presented by Quinonez was relatively simple: if an LWDA notice cites a Labor Code provision not listed in Section 2699.5, does that automatically give the employer an opportunity to cure under Section 2699.3(c)? The plaintiff’s LWDA notice alleged that the employer violated Labor Code provisions regarding meal and rest breaks, minimum and overtime wages, payroll records and wage statements and reimbursement for business expenses, all of which are listed in Section 2699.5. However, the notice also identified other Labor Code provisions, such as Section 200 (which defines the terms “wages” and “labor”) and Section 558 (which enumerates certain penalties). The employer sent the plaintiff a cure notice, taking the position that because these sections are not listed in Section 2699.5, it had an opportunity to cure under Section 2699.3(c). The plaintiff never responded. Thus, the employer filed a demurrer, arguing that by not responding, the plaintiff had failed to exhaust the administrative remedies mandated by Section 2699.3(c)(3). The trial court agreed, and sustained the demurrer.
The Court of Appeal reversed, finding the matter to be a “fairly straightforward” matter of statutory interpretation. Slip op. at 5-6. Observing that Section 2699.5 specifies that “alleged violation[s]” of the enumerated Labor Code sections cannot be cured, it concluded that the trial court should have examined only those Labor Code sections that the LWDA notice alleged were actually violated. Id. (Similarly, Section 2699.3(c) expressly applies to an alleged “violation of any provision other than those listed in Section 2699.5[.]”) The Labor Code sections identified by the demurrer merely stated definitions or remedies, but did not “form the basis of [the] cause of action.” Id. at 6.
Although not binding, Quinonez confirms that Sections 2699.3(c) and 2699.5 mean what they say: if an employer is alleged to have violated a Labor Code section that is listed in Section 2699.5, PAGA provides no right to cure. Whether the LWDA letter cites other statutory provisions has no bearing on this analysis.
