California’s Private Attorneys General Act

Here’s more of what we touched on last week.

Under PAGA, employees can sue their employers for all labor-code violations against them and their fellow employees. To do it, you have to be a current or former employee who was affected by at least one of the violations. If so, you can sue on behalf of the state for all of them, and you can collect all the penalties the state would impose if it were the one suing.

How much are the penalties? If a code section has its own penalty then that’s the penalty under PAGA, too. If it doesn’t then PAGA’s default penalties are $100 per employee per pay period for a first violation and $200 per employee per pay period for each subsequent one.

If you win, you and your fellow employees keep 25% of the proceeds, and you recover your legal fees and costs. The other 75% goes to the state to support the enforcement of labor laws. But the court can reduce the award if it would be unjust, arbitrary, or excessive. It also must review and approve any settlement. And the state must get notice of any proposed settlement as well as any judgment or order awarding or denying penalties.

Before you file, you must give written notice to the state and the employer. Your notice must spell out the specific code violations that you allege and the facts and theories that support them. If you’re an employer who receives that notice, you can file a response.

Then the state has sixty days from the postmark date of the notice to decide whether to investigate. If it declines, or if it doesn’t respond within 65 days, then you’re free to sue. But if it wants to investigate then it will let both sides know, and it will have 120 days to complete its investigation (which it can extend for another sixty days if it needs more time). If it declines to prosecute after that, you’re free to sue. Just remember to serve the state with a file-stamped copy of your complaint.

You can’t sue if the state intervenes within these timeframes. You also can’t sue for violations of most notice, posting, filing, or reporting requirements unless they involve mandatory payroll or workplace-injury reporting.

For health and safety violations, you follow a separate but similar procedure. But for these and certain other violations, the employer can cut off your right to sue by promptly fixing the problem. To fix the problem means to cure each violation, comply with the underlying statutes, and make you whole.