When insolvent companies are unable to make payroll or to pay accrued vacation or other amounts owed employees, the question often arises whether directors, officers, or shareholders face personal liability for these unpaid amounts. The California Court of Appeal recently addressed that issue, examining whether particular sections of the California Labor Code, as well as section 17200 of the Business and Professions Code (California’s unfair competition law), impose personal liability.
The Court of Appeal Decision. In its April 2008 decision in Bradstreet v. Wong, the Court of Appeal for the First Appellate District held that owners, officers, and managers of an insolvent company, which later filed bankruptcy, were not personally liable for unpaid wages, overtime, vacation pay, and other amounts based on a series of alleged California Labor Code violations. The Court also ruled that these individuals were not liable to pay restitution under Business and Professions Code section 17200. A copy of the Court of Appeal’s opinion is available here.
Risks Remain. Although the decision is a favorable one for officers and directors, risks remain. Be sure to read the informative discussion written by my colleagues in the Employment & Labor Group at Cooley Godward Kronish LLP for a careful analysis of the decision. As they explain, despite this new decision, and the California Supreme Court’s 2005 decision on similar issues in the Reynolds v. Bement case, it’s possible that directors and officers may still face a risk of individual liability under other California Labor Code sections or based on different legal theories. Depending on the facts and statutes involved, there may also be individual liability under federal law or the laws of other states.
Get Advice. The issues presented when an insolvent company is, or might be, unable to pay wages are complicated. Directors and officers of a company facing this situation should be sure to get both insolvency and employment law advice to help guide them, and the company, through these difficult straits.
Bob Eisenbach
Listed in The Best Lawyers in America® for Bankruptcy and Creditor-Debtor Rights Law, and recognized as one of Northern California’s Super Lawyers®, Bob focuses his practice on restructuring, bankruptcy, distressed M&A, and related litigation. He is regularly involved in cases throughout the country, including California, Delaware, and New York.