On September 14, 2016, Judge William F. Highberger granted the defendant casino’s motion to dismiss and struck a claim seeking an estimated sixty million dollars in penalties under California’s Private Attorneys General Act, Cal. Labor Code §§ 2698 et seq (PAGA) in Nguyen et al v California Commerce Club, Inc., Los Angeles Superior Court case BC503226. The basis for the motion to strike was that the Williamson Doctrine precluded the claim.
Thirteen employee-plaintiffs alleged three distinct legal theories: individual disability discrimination/retaliation claims, wage and hour class action claims with a putative class of over 1,000 casino dealers, and the PAGA claim. Plaintiffs sought PAGA penalties premised on the theory that the defendant casino’s smoking lounge violated Labor Code health and safety statutes.
Plaintiffs first sought PAGA penalties alleging that the smoking lounge violated Labor Code section 6404.5. This is California’s uniform statewide standard to restrict and prohibit the smoking of tobacco products in enclosed places of employment. That claim was dismissed on the grounds that Labor Code section 6404.5 delegated exclusive enforcement authority to local law enforcement agencies and thus neither the Labor & Workforce Development Agency (LWDA) nor aggrieved employees acting on behalf of the LWDA have the authority to recover PAGA penalties. See Lab. Code § 6404.5(i) (“This subdivision shall be enforced by local law enforcement agencies, including, but not limited to, local health departments, as determined by the local governing body.”)
Plaintiffs sought to circumvent Labor Code section 6404.5 by asserting that the smoking lounge violated nine health and safety statutes: Labor Code sections 6400, 6401, 6401.7, 6402, 6402, 6404, 6405, 6406, and 6407, which generally require employers to provide a workplace that is safe and healthy, furnish safety devices, establish an injury prevention program, and comply with occupational safety and health standards. Plaintiffs’ theory was that the casino violated these health and safety statutes by having its employee work in the smoking lounge and sought to compound PAGA penalties for each of the nine health and safety statutes.
The defendant casino’s motion to strike made the argument that the general duty statutes are preempted by Section 6404.5 under the Williamson doctrine, which provides that “where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.” In re Williamson (1954) 43 Cal.2d 651, 654.
The defense successfully argued that when the Legislature enacted Labor Code section 6404.5, it intended section 6404.5 to be the comprehensive state scheme and enforcement mechanism governing smoking in the workplace. The Court previously had ruled that there is no PAGA right of action under section 6404.5 because of its delegation of authority to local law enforcement agencies. Defendant’s motion to strike argued that for the same reason Plaintiffs cannot use the Labor Code’s health and safety statutes as a basis for liability because section 6404.5 was enacted to specifically deal with issues of smoking in places of employment and the enforcement thereof. Allowing Plaintiffs to bring a PAGA claim premised on the health and safety statutes for smoking in the workplace would render section 6404.5 superfluous. Judge Highberger agreed.
The defendant is represented by Lewis Brisbois attorneys Jeffrey S. Ranen, William C. Sung and Tyler J. Johnson
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
