In California, there are a range of laws that employers must follow when it comes to their employees. This includes laws about paying employees for their hours worked, safety rules, and more. If employers violate these rules, then they may be liable for civil (and in some cases, criminal) penalties.
In 2004, California enacted a law that empowered workers to file lawsuits against their employers for labor violations. Under the Private Attorney General Act, or PAGA, private citizens can pursue civil penalties against their employers on behalf of the State of California. This law was passed to better combat wage theft as many state agencies, such as the Labor and Workforce Development Agency, struggle to properly enforce state labor laws with their limited budget and manpower.
Who Can File A Claim Under PAGA?
Under PAGA, a current or former aggrieved employee can file a lawsuit against their company. A worker is considered an aggrieved employee if they have suffered from one of their employer’s labor violations. However, even if they were only harmed by some of their employer’s labor law violations, a worker who files a PAGA claim can still recover damages for all of the company’s violations.
For example, Anna is a salaried employee at her company. She learns that the hourly workers have not been paid overtime in accordance with California’s wage and hour laws. Because Anna is considered exempt from these laws, she cannot file a PAGA claim for these violations. However, if her company violated another labor law in a way that affected her, then she could file a PAGA claim and recover penalties for both the wage and hour violations and whatever violations impacted her.
PAGA lists 3 types of labor violations that can be the basis of a claim: (1) violations of the California Labor Code that are specifically listed in the statue; (2) violations of California’s health and safety regulations; and (3) any other violation California’s labor laws. In the example above, Anna’s employer does not have an injury and illness prevention program as required under California law. Anna contracts coronavirus because her company did not implement infection control measures to protect employees. In this situation, Anna could file a PAGA claim against her employer for the health and safety violation — and if she is successful, she could also recover for the wage and hour and any other violations.
Importantly, employees can still file a PAGA claim even if their employment contract specifically waives their right to sue. This type of waiver violates public policy when it comes to filing PAGA claims. As such, the waiver is unenforceable in court.
How To File A PAGA Claim
Filing a PAGA lawsuit is different than filing other types of employment law claims. First, you are required to file an online claim with the California Labor and Workforce Development Agency. Second, you must serve a copy of your claim on your employer via certified mail.
This filing must contain specific information, not just a list of alleged labor law violations. The filing must include the basic facts of what happened, which of California’s labor laws have been violated, and a list of employees affected by these violations. Importantly, the filing does not have to include every potential labor law violation. As such, this filing is better done by an experienced employment attorney.
Once the filing is complete and your employer has been served, the Labor and Workforce Development Agency has 65 days to decide whether to take the case based on their own investigation. If they do not take the case, then you are then permitted to file a PAGA lawsuit in civil court.
A PAGA claim is considered a representative lawsuit, where you are standing in for other employees who have suffered harm. This means that you will be acting as a representative of the other aggrieved workers at your company. PAGA claims must be filed within 1 year of the last alleged violation of California labor law.
Damages Available In PAGA Claims
If your PAGA lawsuit is successful, then you will recover a portion of the civil penalties that the employer must usually pay to the State. Unlike other types of employment law claims, you cannot recover lost wages or other damages in a PAGA case.
Under this law, if an employee brings a successful PAGA claim, 75% of the civil penalties that are awarded will go to the state of California. The remaining 25% goes to aggrieved worker(s) who brought the claim, with the amount split between all employees who were affected by the violations. Employers who lose a PAGA lawsuit will also be required to pay attorney’s fees and court costs.
Civil penalties can quickly add up when an employer has committed sustained violations of California labor law. For example, if your boss tells you and your co-workers that you “cannot take a lunch break if things get busy,” that is a violation of California’s labor and employment law. The first violation carries a $100 penalty, with a $200 penalty for each subsequent violation (for every employee and for pay period). If you are paid bi-weekly, and this has gone on for a year, that equals 26 violations. This works out to $20,700 in civil penalties for each employee. If 45 people were affected by this labor law violation, then the total civil penalty is $931,500. $698,625 of that amount would go to the state, with the remaining $232,875 to go to the aggrieved workers. That works out to $5,175 per employee.
PAGA claims are just one way that employees can seek justice when their employers have wronged them. In some situations, a PAGA lawsuit may be the best way to get compensated for your employer’s labor law violations.
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Odell Law, PLC. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.