In Kilby v. CVS Pharmacy, Inc., Civil No. 09cv2051-L(CAB), 2010 WL 3339464 (S.D. Cal. Aug. 23, 2010) (slip op.) Defendant argued that provisions of Wage Order 7-2001 were invalid because the IWC, before adopting any new rules, regulations or policies, was required by Labor Code section 1173 to consult with the California Occupational Safety and Health Standards Board to determine areas of potential overlap, which it is alleged to have failed to do because it delegated too much to the staff. Id. *2. The court rejected this argument, agreeing with the California Court of Appeal in California Manufacturers Association v. Industrial Welfare Commission, 109 Cal. App. 3d 95, 122-23 (1980).
Defendant also argued that the action should be dismissed because the pertinent provision of Wage Order 7-2001 is not incorporated into Labor Code Section 1198. Section 1198 provides:
The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.
The provision of Wage Order 7-2001 on which Plaintiff relies states, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Defendant made the interesting argument that section 1198 renders unlawful only employment for longer hours than fixed by the wage orders and those practices which the orders prohibit. Defendant reasoned that since section 14(A) of the wage order is not couched in prohibitory language, it is not rendered unlawful by section 1198. The court rejected this argument:
To interpret the Wage Orders as not prohibiting, and therefore allowing, any work condition unless the provision is phrased in the negative, i.e., using the word “not,” would be contrary to common sense. Accordingly, section 1198 renders unlawful violation of Wage Order 7-2001, Section 14(A).
The court also considered whether the default penalties of Labor Code Section 2699(f) apply. Section 2699(f) includes a default penalty which applies to Labor Code provisions for which a penalty is not specifically provided: “For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows ….” Id. *3.
Defendant argued that because Wage Order 7-2001 contains its own penalty provision, that provision applies and not the default penalties specified in section 2699(f). Plaintiff argued that PAGA default penalties apply because the Labor Code does not specifically include a penalty for section 1198 violations. The court held that the default penalty provisions of section 2699(f) apply because “[a]lthough Wage Order 7-2001 provides for penalties, Wage Order 7-2001 § 20, that penalty provision is not ‘specifically’ provided for violations of any Labor Code sections, much less section 1198.” Id. *3.
U.S. District Judge M. James Lorenz.