Let’s Talk PAGA
What is a PAGA Action?
The California Labor and Workforce Development Agency (LWDA) is authorized to collect civil penalties from employers who commit certain violations of the Labor Code. The Labor Code Private Attorneys General Act (PAGA) allows employees to also pursue civil claims against their employers since the LWDA cannot prosecute every potential Labor Code violation. This means that aggrieved employees can pursue the civil penalties available under the Labor Code that could otherwise be pursued by the Labor and Workforce Development Agency.
Notably, PAGA allows employees to file representative actions on behalf of the state. This is different from a class action where the lead plaintiff pursues claims on behalf of other employees. In order to bring a PAGA action on behalf of other employees, a plaintiff must have experienced the same violations.
Prelawsuit Notice
Before a plaintiff may sue under PAGA, they must comply with certain statutory notice requirements. In particular, the aggrieved (or injured) employee must give written notice to the employer and LWDA by filing online with the agency. They must set forth the specific provisions violated and provide sufficient facts to give the agency an opportunity to decide whether to investigate the claim, and the employer an opportunity to cure. The LWDA must then notify the employee and employer within 60 days and the employee may then commence a legal action. If the LWDA fails to respond, the employee may commence suit 65 days after the initial notice was postmarked.
For certain violations, employers have the opportunity to cure upon receipt of the PAGA notice. To do so, they must correct the violation and ensure that each aggrieved employee is made while. Labor Code § 2699(d)(1). Violations listed in Labor Code § 2699.5 and certain safety violations are not subject to cure.
Scope
PAGA is not an exclusive remedy so while a plaintiff can pursue penalties on behalf of the state, it can also concurrently pursue individual claims or class claims. However, PAGA is limited to statutory violations and does not create a private right of action to action to enforce wage orders.
Civil Penalties
PAGA penalties are separate and apart from penalties that are otherwise available to employees under the Labor Code. For example, employees may be entitled to statutory penalties from employers for missed meal and rest breaks. These are distinguishable and recoverable without the use of PAGA. PAGA allows plaintiffs to recover the specific civil penalties otherwise assessed and collected by the LWDA. For actions brought on or after June 19, 2024, 65% of the penalties recovered by a plaintiff go to the LWDA (i.e. the State of California), and 35% go to the affected employees. Labor Code § 2699(m). Except for sections in the Labor Code that set forth a particular civil penalty, Labor Code § 2699 provides that for any Labor Code section that allows for collection of an unspecified civil penalty, the default penalty for employers is generally: (1) $100 for each aggrieved employee per pay period (with exceptions); (2) $50 for each aggrieved employee per pay period for a violation that resulted from an isolated event that didn’t extend beyond 30 days or 4 pay periods; (3) $200 if the employer’s conduct was malicious or fraudulent, or if a court previously found that the employer’s practice was unlawful in the last 5 years. While the penalties and their exceptions can be complex, the general penalty is $100 per employee per pay period.