In the wake of this summer’s legislative Private Attorneys General Act (PAGA) reforms, the California Labor & Workforce Development Agency (LWDA) has released a Frequently Asked Questions (FAQs) page on its website to explain the law. The FAQs provide useful information on many aspects of PAGA, including the following:
Who Can File and Against Whom?
Employees may file a lawsuit on behalf of themselves and other current and former employees. For PAGA notices filed on or after June 19, 2024, any current or former employee who has experienced each of the alleged labor law violations may file a PAGA lawsuit. For PAGA notices filed before June 19, 2024, any current or former employee who has experienced at least one of the alleged labor law violations may file a PAGA lawsuit.
Only private employers, not government employers, are subject to PAGA lawsuits.
The Procedural Requirements
An employee must first give notice before filing a lawsuit. To do so, the employee must complete an online form, submit a letter to LWDA, and send the notice to the employer by certified mail. The Labor Commissioner’s Office (LCO) may decide to investigate any PAGA notice alleging wage and hour violations. If the LCO does not investigate or does not file suit or issue a citation within 120 days of its decision to investigate, the employee may file suit.
What Amounts May be Recovered?
Civil penalties may be recovered under PAGA:
- For PAGA notices filed before June 19, 2024, the penalties are split between employees and the state, with 75% of the penalties paid to the state and 25% going to the employee(s).
- For PAGA notices filed on or after June 19, 2024, 65% of the penalties paid to the state and 35% to the employee(s).
With certain exceptions, for PAGA notices filed on or after June 19, 2024, if an employer takes all reasonable steps to comply with the law prior to receiving a PAGA notice but a violation still occurs, the maximum penalty is 15% of the penalty sought. If the employer takes all reasonable steps to be prospectively in compliance with the law within 60 days of the PAGA notice, the maximum civil penalty is 30% of the penalty sought.
The Cure Process
Employers may cure or correct certain violations during the notice period and avoid litigation and civil penalties. For notices filed on or after June 19, 2024, the cure procedure includes claims for minimum wage, overtime, meal and rest breaks, expense reimbursement, and itemized wage statements, among others. Employer cure proposals are treated as confidential settlement proposals and may not be used to prove the validity of any claim or as an admission of liability. All cure notices or proposal and cure disputes must be submitted online through the PAGA Filing Portal.
Early Evaluation Conference
Employers may participate in an early evaluation conference and stay court proceedings during the evaluation. This process, which is overseen by a neutral evaluator, is intended to facilitate early evaluation and resolution of the dispute. This process is distinct from the administrative cure process administered by LWDA.
