Private Attorney General Act – PAGA Claims in California

The Private Attorney General Act (or PAGA) is a California law that allows workers to bring labor violation claims against an employer or former employer. The workers act as “private attorneys general” and can pursue civil penalties as if they were a state agency.

Here are four key things to know:

1. PAGA gives workers the ability to file a lawsuit on the behalf of the California Attorney General.
2. Depending on the case, labor violations carry penalties ranging from a few dollars to $200 per aggrieved employee, per pay period.
3. 65% of these monetary penalties go to the State of California, not the workers.
4. Workers have one year from the violation to bring a PAGA lawsuit.

In this article, our California labor and employment lawyers explain:

• 1. Who can file a lawsuit under PAGA?
• 2. What labor violations can lead to PAGA claims?
• 3. How can workers file a Private Attorney General Act lawsuit?
• 4. How long do workers have to file a PAGA claim?
• 5. How are PAGA penalties calculated?
• 6. What do AB-2288 and SB-92 do?
• Additional Resources

1. Who can file a lawsuit under PAGA?

PAGA lawsuits can be filed by a company’s “aggrieved employees.” A worker is an aggrieved employee if they personally suffered from one of the company’s labor violations.

Note that you can waive your right to bring an individual PAGA lawsuit (and submit to arbitration instead) in your employment contract.

Also note that certain janitorial workers who are part of a labor organization and a collective bargaining agreement in effect prior to July 1, 2018, may not bring PAGA claims.¹

2. What labor violations can lead to PAGA claims?

The Private Attorney General Act lists 3 types of labor violations that can lead to a PAGA claim:

1. Violations of the California Labor Code specifically listed in the PAGA statute,
2. Violations of California’s health and safety regulations, and
3. Any other violation of California’s labor laws.²

Any employee who has been impacted by any of these violations can pursue a PAGA claim.

3. How can workers file a Private Attorney General Act lawsuit?

The process of filing a PAGA lawsuit is different from other wage and hour lawsuits.

Aggrieved employees begin by filing a PAGA claim with the California Labor and Workforce Development Agency. This filing has to be done online. It costs $75 to file, though the filing fee can be waived if necessary. It has to be served on the employer via certified mail, as well.

The PAGA filing with the California Labor and Workforce Development Agency has to include specific information. It cannot just be a listing of the employer’s violations. At a minimum, it must specify:

• The basic facts of what happened,
• Which provisions of California’s labor laws have been violated, and
• A listing of the aggrieved employees.

However, the initial PAGA filing does not have to include every possible fact or every possible violation.

This puts the employer on notice of the claim. It also gives the Agency an opportunity to investigate and pursue the claim on its own. The Agency has 65 days to decide whether to take the case. If they choose not to, the aggrieved employee can file their own PAGA lawsuit.

Once filed, a PAGA claim moves forward as a representative lawsuit. This is different from a class action in that the class does not have to be certified.¹⁶ However, the aggrieved employee filing the PAGA lawsuit stands in for other employees who have suffered from a labor violation.

Note that employers have 33 calendar days to “cure” certain violations regarding:

• meal periods,
• rest breaks,
• overtime,
• minimum wage,
• wage statements, and
• expense reimbursements.

If employers rectify the violation, they will not be fined a civil penalty for it.³

4. How long do workers have to file a PAGA claim?

The statute of limitations for filing a PAGA claim is 1 year from the last alleged labor violation.⁴

5. How are PAGA penalties calculated?

Workers who succeed in a lawsuit under PAGA recover civil penalties. However, most of the penalties recovered in a PAGA lawsuit go to the State of California.

The employer’s initial labor violation carries a civil penalty of $100 per aggrieved employee, per pay period. Though their are exceptions:

• For wage statement violations that cause no harm, penalties are capped at $25 per aggrieved employee per pay period.
• For isolated, nonrecurring violations, penalties are capped at $50 per aggrieved employee per pay period.
• If employers were “proactively compliant,” penalties for violations can be capped as low as 15% of the maximum penalty.
• If employers complied (“took all reasonable steps”) within 60 days of receiving a PAGA notice, violations can be capped at 30% of the maximum penalty.

Meanwhile, labor penalties can be as much as $200 per employee, per pay period if either:

• The court finds that the employer’s conduct that gave rise to the violation was oppressive, malicious, or fraudulent; or
• Within five years prior the violation, the Labor and Workforce Development Agency or any court found that the employer practice that gave rise to the violation was illegal.

This is different than recovering compensation. In a typical wage and hour lawsuit, a worker’s recovery focuses on their unpaid wages. In a claim under the Private Attorney General Act, workers only recover civil penalties provided by the statute. They cannot recover lost wages.

Like many qui tam lawsuits, the person bringing a PAGA claim only receives some of the money.

• 65 percent of the penalties recovered in a Private Attorney General Act claim go to the State of California.
• The aggrieved employees who brought the claim share 35 percent of the penalties.

This portion is split among the employees who were affected by the labor violations.

In addition to these penalties, successful PAGA claims also recover attorneys’ fees and court costs.⁵

6. What do AB-2288 and SB-92 do?

On July 1, 2024, California Governor Newsom signed into law two bills that made PAGA laws more employer-friendly.

Prior to AB-2288, employers in violation were on the hook for civil penalties of $100 per aggrieved employee per pay period. Now, many violations are capped at much lower amounts, especially if the employer took proactive actions to fix the problem.

Prior to SB-92, employers in many cases were not given the time to cure violations before being liable for civil penalties. Now, employers have 33 days to cure violations before civil penalties can be imposed.⁶

Additional Resources

For more information, refer to the following:

• California Labor & Workforce Development Agency PAGA Resource Page – State agency’s info page explaining the PAGA process.
• PAGA: A Decade of Victories – Overview of PAGA cases from an employee rights organization.
• Lowe’s Ex-Worker Case Leads New Shot for Clarity on PAGA Rulings – recent article by Bloomberg Law.
• PAGA settlements and the unintended consequences on California workers – recent editorial by The Orange County Register.
  
• California’s two-decade battle over PAGA labor law still rages – recent editorial by Cal Matters.

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