The Private Attorneys General Act (PAGA) authorizes workers to file claims against their employers for violations of the Labor Code.
Multiple failures to enforce labor code violations prompted the creation of PAGA in 2004. Under California law, PAGA permits employees to act as private attorneys general and pursue civil penalties as if they were a state agency.
Even if you are an employee that has signed an employment agreement directing any disputes with your employer to arbitration, this does not prevent you from filing a PAGA claim to assert your rights.
What Is the Statute of Limitations for PAGA Claims?
The PAGA claim statute of limitations is one year from the date of the last Labor Code violation. Therefore, within the PAGA statute of limitations, you must file a pre-file notice to the Labor and Workforce Development Agency (LWDA) before a year passes.
The recent California Court of Appeals decision in Esparza v. Safeway provides that the Labor and Workforce Development Agency must receive notice of a PAGA lawsuit before a plaintiff can file. LWDA must first be given an opportunity to decide whether they will act on the violations alleged in the complaint.
California procedural rules require that PAGA written notices be filed online. California Labor Code also provides that written information be provided to the employer by certified mail. Upon completing the filing procedure, you may file the PAGA lawsuit in court for a $75 fee.
Once filed, there is a 65-day period in which the Labor and Workforce Development Agency may consider an intervention. This 65-day period stays the PAGA claim statute of limitations. Workers also have a period of 60 days to amend their initial claim regardless of whether the statute of limitations has expired by the time of the amendment.
You can expect that a court will dismiss your claim if you file it outside of this PAGA statute of limitations period, so it is crucial that you act quickly to organize and file your claim promptly.
How Do You File a PAGA Claim?
A PAGA claim filed with the California Labor and Workforce Development Agency must include specific information.
A PAGA claim should include the following information:
- Basic facts of what happened;
- Specific information regarding the violation of California labor laws; and
- A complete list of aggrieved employees.
Any additional information supporting these facts will strengthen your claim against your employer. The more details and theories provided to support your claim, the stronger a court views your PAGA claim. Filing the PAGA claim puts the employer on notice of the claim and the violations asserted. At this time, the Labor Workforce Development Agency may investigate the claim and decide whether to take the case.
If the Labor Workforce Development Agency chooses not to pursue the matter, the employee may choose to pursue the claim independently.
How Do You Calculate PAGA Damages?
Calculation of PAGA penalties is based on each employee and each Labor Code violation on a per-pay-period basis. PAGA provides for a default penalty of $100 for initial violations and $200 for subsequent violations unless the Labor Code specifically provides for a different penalty.
What Is a PAGA Settlement?
The court must approve any PAGA settlement regardless of whether the settlement includes an award of PAGA penalties. The Labor Workforce Development Agency receives copies of any proposed settlement at the same time it is submitted to the court.
An important California Supreme Court case, Kim v. Reins, decided in March 2020, affects the impact settlement agreements may have on PAGA claims. In Kim v. Reins, an employee brought a PAGA claim and a class action against their employer. The parties settled through arbitration as to the class claims. As a result of the settlement, the employer moved to dismiss the PAGA claims. The employer argued that since the employee received compensation for their injuries, they were no longer aggrieved and subsequently possessed no standing to sue under PAGA.
However, the California Supreme Court rejected this claim, holding that the parties settling does not affect the employee’s standing to bring a PAGA claim. As a result, employers may not attempt to use severance agreements to bar PAGA claims by aggrieved employees, regardless of whether the parties reach a settlement on separate claims.
Are PAGA Remedies Waivable?
Effective January 1, 2018, AB 1654 permits employees in the construction industry to waive PAGA remedies. However, the law provides that PAGA remedies are waivable only by an individual in the construction industry. Furthermore, the individual must perform work under a CBA, or Collective Bargaining Unit, to waive a PAGA remedy.
Therefore, an employee is exempt from the provisions under PAGA if covered by a CBA—provided the CBA includes the following conditions:
- The express waiver of the PAGA in clear and express terms;
- A grievance and binding arbitration procedure redressing violations typically addressed under PAGA;
- Hourly pay rate not less than 30% more than minimum wage; and
- An award to all remedies available under the California Labor Code except an award of penalties from a PAGA claim.
The waiver of PAGA claims expires when the CBA expires or on January 1, 2028, when the bill expires—whichever comes first.
PAGA claims are a growing area in the enforcement of labor laws in California. The process of filing PAGA claims can be complex. The experienced attorneys at Workplace Rights Law Group advocate to protect your rights as an employee and hold your employer accountable for violations.
The Workplace Rights Law Group has the knowledge and resources to fight for your rights and pursue a successful PAGA claim against your employer.
Contact us today to get started on your case!