By NEHEMIAH CHOI, Rushovich Mehtani LLP.
Tuesday, July 12, 2016.
Back in 2004, California adopted a novel approach to enforcing its Labor Code by enacting the Private Attorney General Act (“PAGA”). This law essentially allows a private citizen to act as a pseudo-Attorney General and pursue civil penalties on behalf of the State of California’s Labor and Workforce Development Agency (“LWDA”).
In order to file a claim pursuant to PAGA, an “aggrieved employee” (private citizen) must inform the LWDA of his/her employer’s alleged violations of the Labor Code. The LWDA then has a certain time period to either elect to investigate and litigate the alleged claims itself or notify the aggrieved employee that it is declining to do so. If, as of the end of such time period, the “aggrieved employee” has either received notice from the LWDA that it is declining to pursue the case, or has not received notice at all, then the aggrieved employee is permitted to seek civil penalties not only for violations that he/she personally suffered but also for corresponding violations of other current or former employees. Any resulting civil penalties are split between the LWDA and the employee; the LWDA receives 75%, while the employee(s) receives the remaining 25%.
There are three classes of violations which are prescribed different procedures. The first class consists of more serious violations. The second class consists of Health and Safety violations. The third and final class consists of all other Labor Code violations that do not fall in to the other two categories. In general, these are considered less serious, and the employer is given the opportunity to fix the problem before a lawsuit can be filed. If the employer fixes the alleged problems going forward, then the aggrieved employee cannot sue for fines for past actions.
On June 27, 2016, Governor Jerry Brown signed into law a set of amendments to PAGA, which will expand labor officials’ involvement in PAGA claims and, in effect, drag out and complicate the PAGA process. These amendments are not particularly helpful to the employees, and they go into effect beginning on July 1, 2016. The most notable amendments are as follows:
– PAGA notices must be submitted to the LWDA online and must accompany a filing fee of $75.
– The LWDA has 60 days to review PAGA notices and to decide whether or not to investigate the alleged violation, instead of the current 30 days.
– The LWDA has 65 days to notify the plaintiff and employer of its intent to investigate, instead of the current 33 days; therefore, PAGA plaintiff cannot file a lawsuit until 65 days after sending notice to the LWDA.
– The LWDA has up to 180 days to issue citations.
– The LWDA must be served with a conformed copy (“file-stamped copy”), that includes the case number assigned by the court, of any PAGA complaint filed in court, within 10 days of commencement of a civil action, for cases filed on or after July 1, 2016.
– The LWDA must be provided with a proposed PAGA settlement, at the same time the settlement is submitted to the court for approval.
– The LWDA must be provided with any court order that approves or denies PAGA settlement, within 10 days of entry of such judgment or order.
– Employers may cure alleged violation within 33 days of the notice to the LWDA and must submit PAGA cure notices to the aggrieved employee or representative by certified mail and to the LWDA by online filing.
If you are considering pursuing PAGA claims against your employer, you should pay particular attention to the new amendments that significantly alter the ways in which PAGA claims are now brought and processed. If you are uncertain about whether or not you have a valid PAGA claim against your employer, then you should seek immediate consultation with an attorney who specializes in employment law and in particular, wage and hour law.