Labor Code sections 558 and 1197.1, allow the Labor Commissioner to sue for set civil penalties in addition to an amount sufficient to recover underpaid wages if an employer fails to pay overtime wages or minimum wages as required by California law.  This decision holds that in a PAGA suit, the employee plaintiff may recover only the set civil penalty amounts, not the additional amounts of wages that the employer failed to pay.  Any claim for those additional wages must be alleged in a non-PAGA claim that would be arbitrable if the employee has an arbitration agreement with the employer.  However, the decision also points out that any determination against the employer in court in the PAGA suit for set civil penalties will be collateral estoppel on the arbitrable wage claims.

No. S246711, 2019 Cal. LEXIS 6629 (Sep. 12, 2019)