Piece rate: types of claims and cases excluded from the affirmative defense provisions in subdivision (b) of the statute

es. In general terms, the affirmative defense provisions of the statute do not apply to cases in which there was a final judgment prior to the effective date of the statute, cases that had been pending and in litigation for a substantial period of time prior to the effective date of the statute (i.e., cases filed before March 1, 2014, with some additional specifications as set forth in the statute, that are likely well advanced in the litigation process), and cases that allege a specific kind of wage theft.

The provisions also are inapplicable to any claims alleging that “employees were not advised of their right to take rest or recovery breaks, that rest and recovery breaks were not made available, or that employees were discouraged or otherwise prevented from taking such breaks.” (§226.2(g)(3).) In other words, the affirmative defense provisions do not apply to claims that an employer did not authorize and permit employees to take rest periods, as distinct from claims alleging a failure to compensate for such periods.

Lastly, the affirmative defense provisions do not apply to employers that are new car dealers as defined in section 426 of the Vehicle Code.

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