What is the California Private Attorney General Act?
PAGA allows employees to sue their employers to collect penalties. Under PAGA, 75% of the collected penalties go to the Labor and Workforce Development Agency, while the remaining 25% goes to the employee or employees themselves.
Interestingly, PAGA was enacted because the state did not have enough money to police all California employers.
What is the Purpose of the Law?
The PAGA does two things:
- It creates a new penalty for violation of the California Labor Code. That penalty is $100 for first violations and $200 for second and subsequent violations. It is assessed on a per employee, per pay period basis. For example, if an employer fails to include all the requisite information on the employees’ pay stubs for two pay periods, the employer could be subject to a $100 PAGA penalty for each of its 50 employees for the first pay period and a $200 PAGA penalty for the second pay period. That one error might cost the employer $15,000!
- The law grants employees the power to sue employers for violations in civil courts by deputizing them, so to speak. Employees sue as so-called Private Attorney Generals, and they and their lawyers can enforce the penalty provisions in court.
The law encourages individuals to bring collective action lawsuits. In other words, the law allows employees to sue on behalf of their coworkers aggrieved by the same Labor Code violation. Attorneys are encouraged to represent employees in PAGA claims because the law states that “any employee who prevails in any action shall be entitled to an award of reasonable attorney’s fees and costs.”
PAGA comes with a one-year statute of limitations.
The 3 Category Violations
The law groups violations into three separate categories:
Category 1: Violations of Labor Code Provisions
Most PAGA claims arise because of violations set forth in California Labor Code 2699.5.
This section cites over one hundred different Labor Code provisions, which includes items like meal and rest break premiums, waiting time penalties, and employees working “under conditions prohibited by the wage order.” This category enables claims which would otherwise not serve as bases for lawsuits. For example, the section allows suits based on the failure to provide suitable seating or maintain a comfortable temperature.
If you want to file a lawsuit based on a Category 1 violation, you are required to give written notice via certified mail to both your employer and the LWDA. In the notice, you are required to specify the provisions that were allegedly violated, including the facts and theories that support the alleged violation. The employee can only follow through with the claim if the LWDA does not investigate within 33 days of receiving the notice.
Category 2: Health and Safety Violations
The second category of PAGA claims is reserved for health and safety violations based on any part of section 6300 of the Labor Code. In order to bring a claim under this section, you must submit a notice to the Division of Occupational Safety and Health in addition to the LWDA. The Safety and Health Division is required to investigate the issues. If it determines that a real problem exists, it must issue a citation, thereby clearing the employer of any threat of a PAGA claim.
Category 3: All Other Violations of the Labor Code
The final category is reserved for violations that do not fall within the first two categories. The requirements for filing are the same as those under category one, but employers are given up to 33 days to remedy the issue that resulted in the claim. If an employer wishes to take advantage of the 33-day grace period, he or she must give notice to the LWDA describing the actions taken to cure the situation.
The employee can counter the employer’s efforts. If the employee believes that their employer’s actions are insufficient, he or she can write the LWDA and describe why the actions did not resolve the violation.
PAGA Penalties
Not all PAGA penalties are the same. If a section of the code already dictates a monetary penalty, that is the penalty that the employee will be allowed to recover. However, for all provisions that do not have a penalty, the PAGA penalty structure will be used: $100 for first violations and $200 for second and subsequent violations.
An Employees’ Rights Attorney Can Help You Understand Your Rights
If you want to learn more about your rights as an employee in California, contact Workplace Rights Law Group. Our experienced lawyers can help you review your current work situation and determine to what, if any, legal actions you are entitled.
Contact our law firm today to schedule your free consultation.
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Theo Khachaturian
Theo is a trial & appellate lawyer whose practice has emphasized wage-and-hour class actions, business disputes, wrongful termination, discrimination, harassment, and intellectual property theft. He has tried civil cases and argued before various California Courts of Appeal.