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.
Because it is a type of qui tam claim, the process and the damages for a PAGA claim are different than a normal lawsuit. Rather than a lawsuit for compensation, it is a type of law enforcement action. 1
The Private Attorney General Act was enacted in 2004. It was written because state agencies were not able to make certain that California’s labor laws were being enforced.2 PAGA gives workers the ability to file a lawsuit on the behalf of the California Attorney General.
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?
Employees can file PAGA claims for labor violations
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 he or she has suffered from one of the company’s labor violations.3 Workers can, however, recover damages for
- all of the company’s labor violations,
- not just the ones that affected them.4
1.1. Can I file a PAGA lawsuit if my employment contract waives my right to sue?
Aggrieved employees can still file a PAGA lawsuit, even if they have signed away their right to sue in their employment agreement.
Many employment contracts in California require workers to take their disputes through arbitration. Nearly all of these contracts require workers to forgo their right to join a class action against their employer.
Neither waiver is enforceable when it comes to PAGA claims. Without the state’s consent, a court cannot enforce an arbitration agreement when the worker files a PAGA lawsuit.5 Explicit waivers of a worker’s rights to file a PAGA claim are unenforceable in court because they violate public policy.6
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.7
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:
- Violations of the California Labor Code specifically listed in the PAGA statute,8
- Violations of California’s health and safety regulations,9 and
- Any other violation of California’s labor laws.10
Any employee who has been impacted by any of these violations can pursue a PAGA claim.
Aggrieved employees file a PAGA claim, online, with the California Labor and Workforce Development Agency.
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.11 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.12
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.13 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.14
However, the initial PAGA filing does not have to include every possible fact or every possible violation.15
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.
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.17
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 employee, per pay period. Subsequent violations are $200 per employee, per pay period. While the penalties seem low, they can accumulate quickly.
Example: A major fast food company tells employees they cannot take a lunch break when the restaurant is busy, a violation of California labor law. 1,000 employees are affected, and the practice has gone on for 30 pay periods. The first violation for each employee carries a $100 penalty. The next 29 violations for each employee carry $200 penalties. The company can be assessed $5.9 million in penalties.
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.18
Like many qui tam lawsuits, the person bringing a PAGA claim only receives some of the money.
- 75 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 25 percent of the penalties.19
This portion is split among the employees who were affected by the labor violations.20
Example: Aggrieved employees at the fast food company would recover 25 percent of the $5.9 million, or $1.475 million. Each would recover $1,475.
In addition to these penalties, successful PAGA claims also recover attorneys’ fees and court costs.21
For additional help…
Contact us if you think you may have a PAGA claim.
PAGA claims have become a huge part of the enforcement of California’s labor laws. They are not easy to file, though. Contact our California labor law attorneys today to get started on your case.
Legal References:
- California Labor Code 2698 et seq. Arias v. Superior Court, (Cal. 2000) 46 Cal.4th 969.
- Arias v. Superior Court, Supra.
- California Labor Code 2699(c).
- Huff v. Securitas Security Services USA, Inc., (Cal. App. 2018) 23 Cal.App.5th 745. See also Sargent v. Bd. of Trustees of the Cal. State Univ. (2021) 61 Cal.App.5th 658 (public entities can face PAGA claims if the underlying statutes create penalties). See also Magadia v. Wal-Mart Associates, Inc. (9th Cir. 2021) 999 F.3d 668 (“[worker] lacked standing to
bring the meal-break claim because he did not suffer injury himself“). See also Santos v. El Guapos Tacos (2021) 72 Cal.App.5th 363 (“[B]ecause plaintiffs’ notice alerted the agency and defendants to ongoing Labor Code violations that were not by nature isolated or unique to plaintiffs, the notice was not deficient for failing to reference other aggrieved employees implicated by the representative action. Plaintiffs’ letter provided fair notice to the agency of representative claims for meal break, rest break, and overtime violations.”). - Betancourt v. Prudential Overall Supply, (Cal. App. 2017) 9 Cal.App.5th 439.
- Iskanian v. CLS Transportation Los Angeles, LLC, (Cal. 2014) 327 P.3d 129. (See also Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906 (“The [Federal Arbitration Act/FAA] preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.”).
- SB 646.
- California Labor Code 2699.3(a) and 2699.5.
- California Labor Code 2699.3(b) and 6300 et seq.
- California Labor Code 2699.3(c).
- California Labor Code 2699.3(a)(1)(B). See also Crestwood Behavioral Health, Inc. v. Superior Court (2021) 60 Cal.App.5th 1069 (PAGA action venue is where employer committed violations).
- California Labor Code 2699.3(a)(1)(A).
- Alcantar v. Hobart Serv., (9th Cir. 2015) 800 F.3d 1047.
- California Labor Code 2699.3(a)(1)(A). See also Green v. Bank of America, N.A., (9th Cir. 2015) 634 Fed. Appx. 188.
- Cardenas v. McLane Foodservices, Inc., (C.D. Cal. 2011) 796 F. Supp. 2d 1246. See also Laface v. Ralphs Grocery Store (2022) 75 Cal.App.5th 388 (“PAGA … contains several unique features that we conclude make it unlike any pre-1850 common law action and therefore unsuitable for a trial by jury.”). See also Shaw v. Superior Court (2022) 78 Cal.App.5th 245 (when there are two overlapping PAGA suits, the concurrent jurisdiction doctrine allows the trial court to stay one of them)
- Arias v. Superior Court, Supra. See also Estrada v. Royalty Carpet Mills (2022) 76 Cal.App.5th 685 (“Allowing dismissal of unmanageable PAGA claims would effectively graft a class action requirement onto PAGA claims, undermining a core principle of these authorities…courts may strike PAGA claims deemed to be unmanageable.”). See also Wesson v. Staples The Office Superstore, LLC (2021) 68 Cal.App.5th 746. See also Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924 (“[A]n employee, whose individual claim is time-barred, may still pursue a representative claim under PAGA”).
- See Brown v. Ralphs Grocery Co., (Cal. App. 2018) 28 Cal.App.5th 824.
- ZB, N.A. v. Superior Court, (Cal. 2019) 8 Cal.5th 175. See also Gunther v. Alaska Airlines (2021) 72 Cal.App.5th 334 (“To assist the trial court on remand, we note that the increased $200 civil penalty for “subsequent violation[s]” does not apply unless [worker] presents evidence that the Labor Commission or a court notified [employer] that it was in violation of the Labor Code.”)
- California Labor Code 2699(I). Note that there conflicting California appellate court decisions re. PAGA settlement standards: Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521; Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56; Uribe v. Crown Building Maintenance Co. (2021) 70 Cal.App.5th 986; Turrieta v. Lyft, Inc., S271721.
- Moorer v. Noble L.A. Events, Inc., (Cal. App. 2019) 32 Cal.App.5th 736. California Labor Code 558.
- Note that in 2024, there will be a ballot initiative to repeal PAGA and replace it with another law that would award wronged employees all monetary penalties. California Fair Pay and Employer Accountability Act Qualifies for 2024 Ballot, CalChamber (August 5, 2022).