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). The cure provisions of Section 2699.3(c) provide a limited window for an employer to correct any alleged violations and explain in writing what corrective actions it has taken. When the employer does so, it triggers additional obligations for the complaining employee before a civil lawsuit can be filed. In particular, the employee must respond to the employer’s cure notice if he or she disputes that the alleged violations have been corrected, and the LWDA must review the purported corrective action. However, several Labor Code provisions, if alleged to be violated, do not provide an opportunity to cure under Section 2699.3(c). These Labor Code provisions are identified in Section 2699.5.
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. The Court observed that Section 2699.5 states that “alleged violation[s]” of the Labor Code sections it lists cannot be cured, and concluded that only the Labor Code sections that the employee claims were violated matter for purposes of determining whether there is a right to cure. Id. (Similarly, the cure provisions of Section 2699.3(c) expressly apply 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, the Private Attorneys General Act (PAGA) provides no right to cure. Whether the LWDA letter cites other statutory provisions is immaterial.