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Individual Employees Can be Liable for Civil Penalties and Attorney's Fees for a Company's Failure to Pay Overtime an/or Minimum Wage

Notwithstanding two previous California Supreme Court decisions which essentially held that “[u]nder the common law, corporate agents acting within the scope of their agency are not personally liable for the corporate employer’s failure to pay its employees’ wages,”  Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087, and Martinez v. Combs (2010) 49 Cal.4th 35, 66 (limiting liability for wage claims to the actual employer and not its agents), the California Court of Appeal just held that  individual employees can be liable for civil penalties and attorneys’ fees for a company’s failure to pay overtime and/or minimum wages.

In Atempa v. Pedrazzani (September 28, 2018, D069001) ___ Cal.App.4th ___ [2018 WL 4657860], the Court of Appeal, Fourth Appellate District, distinguished both Reynolds and Martinez and held that individuals can be liable for civil penalties under California Labor Code section 558, subdivision (a) (relating to overtime) and Labor Code section 1197.1, subdivision (a) (relating to minimum wage) through the Private Attorneys General Act (“PAGA”) (Cal. Lab. Code, § 2699).

The Court held that the plain meaning of Labor Code sections 558(a) and 1197.1(a) imposed liability for civil penalties on an “other person” acting on behalf of an employer.  Having established that an individual under the circumstances described in the case could be individually liable for civil penalties, as contrasted to the underlying wages, the Court relied on PAGA to allow a private attorney to collect those penalties (75% to the state and 25% to the aggrieved employees) and to collect attorneys’ fees of $315,014 pursuant to PAGA (Lab. Code, § 2699, subd. (g)(1)).


Notwithstanding the California Supreme Court’s determination that individuals, absent alter ego liability, are not liable for wages owed to a company’s employees, the Pedrazzani case establishes that corporate individuals can be held personally liable for civil penalties underlying the statutes requiring that employees be paid overtime and a minimum wage.Additionally, they can be held personally liable for attorneys’ fees resulting from an employee’s successful pursuit of those civil penalties under PAGA. It is unclear whether those payments ultimately will be paid by the company, if it hasn’t gone bankrupt, pursuant to California Labor Code section 2802.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume VIII, Number 281


About this Author

Of Counsel

Laura is committed to providing reliable, high-quality legal representation to strategically solve client problems and address their litigation needs. Clients rely on Laura to develop solutions and effective arguments with respect to their complex legal challenges. She has significant experience managing pretrial matters from inception to trial on a broad spectrum of cases at the state and federal level and involving: 

• Litigation  

• Appeals

• Arbitration 

• Mediation 

• Administrative matters.

Donald Samuels Lawyer Polsinelli

Don Samuels offers more than 30 years of experience in the areas of Employment Law and Litigation. He is a passionate advocate and trusted advisor to his clients with a strong reputation for his in-depth knowledge of the law, high standards, practical approach, integrity and understanding of client needs. Don has a client base that spans from S&P 500 companies  and manufacturing enterprises to city governments and start-up technology companies. While covering all aspects of Employment Law and all phases of Litigation, Don represents employers throughout the United States and holds licenses in Colorado, California and Texas. Don’s extensive experience specifically includes: 

  • Wage and hour issues, including class and collective actions 
  • Discrimination and wrongful termination claims 
  • Sexual and racial harassment claims 
  • Whistle blower and retaliation claims

Enforcement of non-compete and restrictive covenants Don’s client relationships and counsel often include: 

  • Advising on performance issues and terminations 
  • Drafting employee handbooks, employment agreements, severance agreements 
  • In-house training on sexual harassment, performance management, hiring practices and Golden Rule Management (SM)

Don is also an employment law arbitrator for the American Arbitration Association, a member of the board of directors of the Colorado Judicial Institute and mentor at Denver University Law School.


  • J.D., Columbia Law School, 1986, James Kent Scholar; Harlan Fiske Stone Scholar, International Fellow
  • B.A., Brown University, 1983, Political Science, magna cum laude

Bar Jurisdictions

  • Colorado, 1996
  • California, 1986
  • Texas, 1998

Court Admissions

  • U.S. District Court, District of Colorado
  • U.S. District Court, Northern District of Illinois
  • U.S. District Court, Northern District of New York
  • U.S. District Court, Eastern District of Pennsylvania
  • U.S. District Court, Middle District of Pennsylvania
  • U.S. District Court, Western District of Texas
  • U.S. District Court, Southern District of Texas
  • U.S. District Court, Northern District of Texas
  • U.S. District Courts for the State of California (All)
  • U.S. Court of Appeals, Tenth Circuit
  • U.S. Court of Appeals, Ninth Circuit
  • U.S. Court of Appeals, Seventh Circuit
  • United States Supreme Court