Shaw Valenza has the best summary I’ve read.
This decision has a deeply flawed. My personal opinion is that I agree with the outcome in many regards, but that’s just my opinion—it’s not my legal analysis.
First, you can’t cite Kenneth Cole at the same time you are claiming what that opinion says aren’t penalties provide for penalties. That fails the guffaw test. That was a divisive case, but “wages not penalties” was the Supreme Court’s holding, not dicta, 7-0.
Second, the Labor Code defines wages as vested property of the worker, so the idea that this boils down to a pure contract analysis is wrong on its face (and then the equally weird citation to Foley in asserting that employment is not in any regards tortish). There are just too many ways in which the recovery of wages, in the Labor Code, the Bankruptcy Code, etc. is different than a contract action. You do not have to pay conceded contractually due amounts unconditionally, nor does a plain contractual debt create anything but an unsecured debt in bankruptcy.
None of this would be a problem but for the Kenneth Cole case, of course. The other penalties discussed in the case flow into this reasoning quite well. Paystub violations, sure.
Maybe someone can convince me that this case isn’t just ignoring Kenneth Cole.
I imagine that if my normally tepid response is this strong, the Petitions for Review and the Depublication Requests will fly.
