Private Attorneys General Act (PAGA)
The Private Attorneys General Act ("PAGA") was enacted in 2003 to allow individuals, on behalf of the Attorney General, to see civil penalties against employers for wage and hour violations alleged to be committed against the representative employee and all other employees. PAGA is a pseudo-class action made up of a main aggrieved employee and all current and former aggrieved employees. The PAGA requirements are codified in Labor Code §§2698-2699.5.
An employee is required to file a case with the Labor & Workforce Development Agency ("LWDA"), a branch of the DIR, with his/her allegations of violations of Labor Code sections that authorize an award of civil penalties. The LWDA will either (1) decide to investigate the allegations themselves or (2) issue a right-to-sue letter, allowing the employee to file a case under PAGA in civil court.
Usually, if an employee is allowed to file a case under PAGA, his/her attorney will also sue for other alleged violations of labor and employment laws related and unrelated to the PAGA allegations.
The PAGA Steps are as follows:
An employee must file a claim through the LWDA online claim portal, pay a filing fee and serve the employer with notice of the claim.
Employer Response & Cure
After an employee files a claim, the employer is to receive notice and a time to cure the alleged violations. An employer is encouraged to respond. A response must be timely submitted, a filing fee paid and served on the employee or employee's representative (usually attorney). The response usually takes one of 3 forms (1) Notice of Cure, (2) Response to Non-curable Violations, or (3) Both a Notice of Cure and Response.
LWDA Investigation or Right to Sue
After a PAGA claim is filed and the employer responds the LWDA will chose to (1) investigate the allegations itself or (2) authorize the claimant employee to file a civil suit giving a form of Right-to-Sue letter. (See also DFEH who issues Right-to-Sue letters for harassment, discrimination and retaliation claims.)
If the employee is authorized and decides to file a civil complaint the employee can either file a civil complaint alleging PAGA or seek leave to amend an existing employment related case to add PAGA. This latter is more common, as attorneys usually sue for several violations to make on lengthy and intimidating complaint against an employer.
Settlement or Judgment
Most employment cases settle before trial, especially in civil litigation. Though this cannot be promised to be the case as it depends heavily on facts and the parties themselves. In the event that the parties decided the PAGA allegation at any stage after the claim is filed, all settlements of PAGA allegations must be reviewed by the superior court judge (if there is a civil case) and submitted to the LWDA for approval. If the parties do not settle then either there is a finding in the civil case after trial or by the LWDA if the LWDA decides to investigate itself. Any monies that are recovered by the aggrieved employee is split between the aggrieved employees and the LWDA.
Be aware some laws award attorneys' fees to prevailing employees but not to prevailing employers. Consult with an attorney to understand the risks and stringent requirements employers are held to in employment and labor cases in California. I provide a free 15 minute consultation to assist you in figuring out your next defense steps.