The Private Attorney General Act, or PAGA, is a California statute that enables workers to file lawsuits against employers for certain labor violations. Employees act as “private attorneys general.” They 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 2
The Private Attorney General Act was enacted in 2004. It was written because state agencies were not able to make certain California’s labor laws were being enforced.3 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?
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 have suffered from one of the company’s labor violations.4 Workers can, however, recover damages for all of the company’s labor violations, not just the ones that affected them.5
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.6 Explicit waivers of a worker’s rights to file a PAGA claim are unenforceable in court because they violate public policy.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.
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.
For additional help…
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.
- California Labor Code 2698 et seq.
- Arias v. Superior Court, 46 Cal.4th 969 (Cal. 2009).
- Arias v. Superior Court, Supra.
- California Labor Code 2699(c).
- Huff v. Securitas Security Services USA, Inc., 23 Cal.App.5th 745 (Cal. App. 2018).
- Betancourt v. Prudential Overall Supply, 9 Cal.App.5th 439 (Cal. App. 2017).
- Iskanian v. CLS Transportation Los Angeles, LLC, 327 P.3d 129 (Cal. 2014).
- 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).
- California Labor Code 2699.3(a)(1)(A).
- Alcantar v. Hobart Serv., 800 F.3d 1047 (9th Cir. 2015).
- California Labor Code 2699.3(a)(1)(A). See also Green v. Bank of America, N.A., 634 Fed. Appx. 188 (9th Cir. 2015).
- Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246 (C.D. Cal. 2011).
- Arias v. Superior Court, Supra.
- See Brown v. Ralphs Grocery Co., 28 Cal.App.5th 824 (Cal. App. 2018).
- ZB, N.A. v. Superior Court, 8 Cal.5th 175 (Cal. 2019).
- California Labor Code 2699(I).
- Moorer v. Noble L.A. Events, Inc., 32 Cal.App.5th 736 (Cal. App. 2019). California Labor Code 558.