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How does PAGA help me if my employer has not paid me the wages I am owed?

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Note: this article was updated on January 5, 2019. 

In this article we explain everything you ever wanted to know about Private Attorney Generals Act (PAGA) lawsuits. 

First, we answer many of the common questions about PAGA.  Then, we go into a lot more depth about PAGA and we provide more explanation, cases, citations and authority for California PAGA laws.

If you have more questions or concerns, feel free to contact us at 619-234-2833 or fill out the contact form on this website. 

Bill Turley helped draft the recent changes to California PAGA laws and testified before the California State Senate regarding PAGA legislation. Bill is widely viewd as one of the leading experts on California PAGA wage laws. 

What is PAGA?

Private Attorneys General Act or as it is commonly called PAGA, authorizes employees that are subject to illegal labor code violations to act as private attorney generals to recover civil penalties from their employers for violations of the labor code. This can be so, so powerful. You, in essence, can bring a case like the California Attorney General when your employer violations California wage and hour laws.

The idea behind PAGA is that the legislature understands that the DSLE was very understaffed and they also realized that the DLSE can be subject to political pressure. In response, the legislature came up with PAGA.

So what PAGA does is that it allows you to take on the company as if you were the Attorney General of California.  You are getting penalties from the company that has stolen your wages. This is great stuff for California workers.

How do PAGA lawsuits work?

In order to file a PAGA lawsuit, an aggrieved employee must file a claim with the State of California. The claim must detail the facts which support the California Labor Code and/or California Wage Order violations by the company. The State of California then has 65 days in order to provide notice to the aggrieved employee of the State’s intention to investigate the claim.
 
Once 65 days has passed and no notice by the State is provided, then the aggrieved employee can file a PAGA lawsuit.  A PAGA lawsuit is a representative action on behalf of himself or herself and other aggrieved employees. See California Labor Code Section 2699.


What is an aggrieved employee under PAGA?

 
An aggrieved employee under PAGA is an employee of a company that has violated either California’s wage and hour laws or California’s OSHA laws.  Generally, an aggrieved employee files a PAGA collective action on the part or herself or himself and the other aggrieved employees of the company.
PAGA defines "aggrieved employee" as "any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed."

Can I get or recover  PAGA penalties?

Under the PAGA laws,  75% of the PAGA Penalties go to the State Of California and 25% go to the aggrieved employees.
 

Can I get wages that weren’t paid to me by the employer under PAGA?

 
You can only get penalties under PAGA.  However, the wages that were not paid to you by the employer can be part of the PAGA penalties.
 

What is the purpose of PAGA actions?

 
A PAGA action is fundamentally a law enforcement action designed to protect the public and penalize employers for past illegal conduct.
 

What types of PAGA claims can I bring?

Generally, there are three types of PAGA claims. How the action proceeds depends on the type of violation. Here are the three types of PAGA claims"

 - Labor Code violations which are specifically identified in the PAGA statute. California Labor Code Section 2699.3(a).
 - Health and safety violations in the workplace. Also known as OSHA violations. California Labor Code Section 2699.3(b).
 - Labor Code violations and Wage Order violations that are not either not specifically identified in the PAGA statute or health and safety violations.
California Labor Code Section 2699.3(c).


Before bringing a PAGA claim must written notice be provided?

Yes. The employee plaintiff may bring the PAGA action only after giving written notice to both the employer and the Labor and Workforce Development Agency.
 

Where do I file a PAGA claim?

A PAGA written notice must be filed online. California Labor Code Section. The written notice to the employer must be given by certified mail.
 

Is there a filing fee for a PAGA claim?

 
Yes. There is a $75 filing fee for a new PAGA claim.
 

What has to be contained in the PAGA notice?

A PAGA written notice shall have “specific provisions of this code alleged to have been violated, including facts and theories to support the alleged violation.” A PAGA notice requires a detailed statement of facts and theories that support the allegations.
 
More is usually better with a PAGA notice.
 

What is the time limit to file a PAGA claim?

Most courts have stated PAGA claims have a one year statute of limitation.
 
You have to file the claim within the 1 year statute of limitations.


Is a PAGA lawsuit a class action case?

No. The California Supreme Court has held that PAGA cases are not class action case. However, both are collective actions.
 
However, in a PAGA case there is no requirement that the case be certified. And there is no requirements such as predominance or commonality. Nor is there a requirement in a PAGA case that the case be based upon a common question to the entire class of employees. In these respects, PAGA cases are easier to bring a prove than class action cases. 

PAGA actions fundamentally different from class actions, chiefly because the statutory suits are essentially law enforcement actions.
 

How do PAGA penalties work?

Under PAGA, the civil penalty, against the employer, for an initial violation is $100 per employee per pay period, and the penalty for each subsequent violation is $200 per employee per pay period.
 
Under PAGA, the penalties the court can order for PAGA violations is discretionary.
 

If you win a PAGA case, can you recover attorney fees and costs?

 
Yes. If you prevail in a PAGA action, your are entitled to an award of reasonable attorney fees and costs.
 

Bill Turley helped write the recent changes to California's PAGA laws and he regularly testifies before the California Legislature as an expert on

California wage and hour laws - including PAGA wage laws 

How do PAGA cases work? Can I recover money in a PAGA unpaid wages case?

You can contact Bill at 619-234-2833 or fill out the contact for on this webpage

A qui tam lawsuit and ‘deputizing’ citizens as private attorneys general

 
A qui tam lawsuit is a type of lawsuit brought by whistleblower who exposes fraud on the government on behalf of the government and potentially receives a share of the recovery recovered by the government as a reward.
 
The California Supreme Court has stated that PAGA is a type of qui tam statute that allows an aggrieved employee to recover civil penalties on behalf of the state. Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 382 (2014).
 
“The purpose of the PAGA is not to recover damages or restitution, but to create a means of ‘deputizing’ citizens as private attorneys general to enforce the Labor Code. Here, the relief is in large part ‘for the benefit of the general public rather than the party bringing the action.’” Brown v. Ralphs Grocery Co. 197 Cal.App.4th 489, 501  (2011).
 

75% of the PAGA Penalties go to the State Of California and 25% go to the aggrieved employees 

 
Under the PAGA laws,  75% of the PAGA Penalties go to the State Of California and 25% go to the aggrieved employees. 

You can only recover civil penalties under PAGA
 
“The PAGA is limited to the recovery of civil penalties.” Villacres v. ABM Industries Inc. 189 Cal.App.4th 562, 579  (2010). Accordingly, courts have drawn an important distinction between the “civil penalties” available under PAGA, and “statutory penalties” recoverable by individual plaintiffs before PAGA was enacted. Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 381 (2014). 
 
The Supreme court stated in Iskanian:
 
 “The civil penalties recovered on behalf of the state under the PAGA are distinct from the statutory damages to which employees may be entitled in their individual capacities.”
 Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 381 (2014).
   
There are some that contend that you can recover wages under PAGA.  I respectfully disagree. It’s my view that these “wages” are actually penalties. Meaning, that 75% go to the State and 25% go to workers.  I cover this I more detail later in this book in the section on civil penalties vs. statutory penalties.


PAGA actions are designed to protect employees and penalize employers for illegal conduct


A PAGA action is fundamentally a law enforcement action designed to protect the public and penalize employers for past illegal conduct. Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009). The aggrieved employee acts as a Private Attorney General to collect penalties from employers who violate State unpaid wage laws. Franco v. Athens Disposal Co., Inc., 171 Cal. App. 4th 1277, 1283 (2009); Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009).  
 
An employee plaintiff suing under the Labor Code Private Attorneys General Act, does so as the proxy or agent of the state's labor law enforcement agencies. The act's declared purpose is to supplement enforcement actions by public agencies, which lack adequate resources to bring all such actions themselves. Stats. 2003, ch. 906, § 1 [Legislature's findings and declarations];  Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009).
 
In a lawsuit brought under the act, the employee plaintiff represents the same legal right and interest as state labor law  enforcement agencies—namely, recovery of civil penalties that otherwise would have been assessed and collected by the Labor Workforce Development Agency. California Labor Code Section 2699(a)(f); Arias v. Superior Court, 46 Cal. 4th 969, 980-981 (2009).
 

There are three types of PAGA claims    

 
Generally, there are three types of PAGA claims. How the action proceeds depends on the type of violation. Here are the three types of PAGA claims
 - Labor Code violations which are specifically identified in the PAGA statute. California Labor Code Section 2699.3(a).
 - Health and safety violations in the workplace. Also known as OSHA violations. California Labor Code Section 2699.3(b).
 - Labor Code violations and Wage Order violations that are not either not specifically identified in the PAGA statute or health and safety violations. California Labor Code Section 2699.3(c).
 
What you will see is that each of these three different types of PAGA violations have their own unique procedures as laid out in the PAGA statute. California Labor Code Section 2699.3.  However, for each they all have a written notice provision.
 
I will discuss each in greater detail.
 

Labor Code violations which are specifically identified in the PAGA statute

 
The first type of PAGA violations are those that are specifically listed in the PAGA statue. California Labor Code Section 2699.3(a).  The PAGA statute identifies the Labor Code Sections which support a PAGA claim. California Labor Code Section 2699.5.
 
 
A PAGA action for violation of the Labor Code Sections identified under California Labor Code Section 2699.5 can be brought only after the requirements of Labor Code Section 2699.3(a) have been met. 
 

Written notice must be given

The employee plaintiff may bring the PAGA action only after giving written notice to both the employer and the Labor and Workforce Development Agency. California Labor Code Section 2699.3(a)(1); Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009); Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 382 (2005).
A PAGA written notice must be filed online. California Labor Code Section 2699.3(a)(1)(B). The written notice to the employer must be given by certified mail. California Labor Code Section 2699.3(a)(1)(B)
 
There is a $75 filing fee for a new PAGA claim. California Labor Code Section 2699.3(a).
 
A PAGA written notice shall have “specific provisions of this code alleged to have been violated, including facts and theories to support the alleged violation.”
     
A PAGA notice requires a detailed statement of facts and theories that support the allegations. In the Hobart case, the Ninth Circuit finds the PAGA letter was simply a string of legal assertions or conclusions. The Ninth Circuit, stated:
 
Plaintiff's letter—a string of legal conclusions with no factual allegations or theories of liability to support them—is insufficient to allow the Labor and Workforce Development Agency to intelligently assess the seriousness of the alleged violations. Neither does it provide sufficient information to permit the employer to determine what policies or practices are being complained of so as to know whether to fold or fight.
 Alcantar v. Hobart Serv., 800 F.3d 1047, 1057 (2015).
 
          
Under California's Labor Code, a written notice is sufficient so long as it contains some basic facts about the violations, such as which provision was allegedly violated and who was allegedly harmed. Green v. Bank of Am., N.A., 634 Fed. Appx. 188, 191, 2015 U.S. App. LEXIS 22120, *4.
 
Plaintiffs need not put forth "every potential fact or every future theory," and finding a notice sufficient where it identified the specific plaintiffs aggrieved by the alleged violations.  Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246, 1259-61 (C.D. Cal. 2011).
 

Beware - defective PAGA notices

 
Some District Courts have dismissed PAGA claims based upon a defective notice. Which is another good reason to file a stand alone PAGA claim in State Court. Because a PAGA claim is not a class action case, it can’t be removed to Federal Court under the Class Action Fairness Act.  However, we have been seeing Defendants removing PAGA cases under Diversity jurisdiction. 
 
If a PAGA case is dismissed due to a defective notice, you can always file a new PAGA case. However, you have to file the claim within the 1 year statute of limitations.

What is an aggrieved employee?

 
PAGA defines "aggrieved employee" as "any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed." California Labor Code Section 2699(c);  Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 805, 2015 U.S. Dist. LEXIS 92148, *43, 2015 WL 4274990


A PAGA case is not a class action case


The California Supreme Court has held that PAGA actions are not class actions under state law. Arias v. Superior Court, 46 Cal. 4th 969, 974 (2009). California’s class action requirements need not be  when an employee's representative action against an employer is seeking civil penalties under PAGA. Arias v. Superior Court, 46 Cal. 4th 969, 974 (2009).

The Arias court found  PAGA actions fundamentally different from class actions, chiefly because the statutory suits are essentially law enforcement actions. Arias,  at 933-34.
 


The PAGA penalties that you are owed can add up fast


For the PAGA enforcement penalties recovered,  75% goes to the State of California (Labor and Workforce Development Agency) and 25% go to you, “aggrieved employees.” California Labor Code Section 2699(I); Arias v. Superior Court, 46 Cal. 4th 969, 980-981 (2009).

Under PAGA, the civil penalty, against the employer, for an initial violation is $100 per employee per pay period, and the penalty for each subsequent violation is $200 per employee per pay period.

Thus, for each initial violation, you may be entitled to $25 for each violation per pay period and $50 for each subsequent violation per pay period.

What you are going to see is that PAGA penalties can add up. Fast
 

Attorney fees and costs

 
If you prevail in a PAGA action, your are entitled to an award of reasonable attorney fees and costs. California Labor Code Section 2699(g)(1).
 

PAGA awards are discretionary
   

Under PAGA, the penalties the court can order for PAGA violations is discretionary. Specifically, the court may award lesser amount than maximum civil penalty in PAGA action if to do otherwise would result in award that is unjust, arbitrary and oppressive, or confiscatory. California Labor Code Section 2699(e)(2); Amaral v. Cintas Corp. No. 2 163 Cal.App.4th 1157, 1213 (2008).
 
The Appellate court in Thurman v. Bayshore Transit Management upheld the trial court reducing the PAGA penalties by 30 percent in light of employer's conduct  demonstrating it took obligations seriously and attempted to comply with the law. Thurman v. Bayshore Transit Management, Inc. 203 Cal.App.4th 1112, 1135–1136 (2012).
 
In my view, the fact that PAGA penalties are discretionary.  In some respects, this takes some teeth out of PAGA, in the eyes of some employers.  They figure they can steal wages and be able to get off the hook later with an arbitration agreement and a sad story to the Judge.


PAGA and pay stub violations/ Labor Code Section 226


Employers in California must provide itemized pay statements. California Labor Code Section 226. 
 
A plaintiff seeking civil penalties under PAGA for a violation of section 226(a) does not have to satisfy the “injury” and “knowing and intentional” requirements of section 226(e)(1). Lopez v. Friant & Associates, LLC, 15 Cal. App. 5th 773, 788 (2017).

 

If you have any questions about whether or not you have a PAGA case on your hands

then call us today at 619-234-2833

Bill Turley testifying before the California State Senate on PAGA

 

Making the Law: Bill Turley helped draft the recent changes to PAGA laws

  The Private Attorneys Generals Act (PAGA) is a case where aggrieved employees are, in effect, deputized to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. The PAGA laws were enacted because the State of California has inadequate resources to enforce California wage laws.

Bill helped draft recent changes to the PAGA laws. Bill was the wage and hour lawyer that sat met with the Governor’s office to help write the new PAGA amendments.

 

Bill represented the workers in the landmark

California Supreme Court case -

 Brinker vs Superior Court

(Maybe the most important wage case

for the protection of workers)

 

Bill represented the workers in the 2012 groundbreaking California Supreme Court case - Brinker vs. Superior Court. Many people say that the Brinker case is the most important California Supreme Court wage and hour case in years (if not ever).

 

 

Bill and million dollar case results 
 

Bill always points out that there are no guarantees that any lawsuit, wage class action case, and/or PAGA case will be successful and/or whether anyone will recover money, wages and/or penalties. There are any number of reasons why these cases are defeated, aren’t certified and/or are unsuccessful. Every case is different. Just because Bill has gotten great million dollar results on so many unpaid wage cases doesn't mean he will get similar results on every unpaid wages case. Every situation is different. Every case has different facts, evidence and defenses.

 

 

William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”
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