Focused On Business Law

Attorneys Sara Bradley, Marinda Neumann and Lindsay Nakagawa.

You Must Follow PAGA’s Administrative Procedures “to a T” to Bring a Claim

On Behalf of | Oct 2, 2020 | Business Law, Employment Law

California enacted its Private Attorneys General Act of 2004 (“PAGA”) to improve enforcement of labor code violations. Under PAGA, aggrieved employees may pursue civil penalties on behalf of themselves, other employees, and the State of California Labor and Workforce Development Agency (“LWDA”) for certain labor code violations.

To bring a PAGA claim, however, the aggrieved employee must adhere to strict administrative procedures including notice, filing, and waiting requirements as outlined in California Labor Code Section 2699.3. We focus on the notice requirement below.

PAGA Notice Required to LWDA and Employer

The aggrieved employee must provide notice to (1) the LWDA and (2) his employer of the specific labor code provisions violated, including facts and theories to support the violation.  Notice to the LWDA allows it to decide whether to allocate its “scarce resources to an investigation” and to determine whether the employee has any basis for his allegations. Notice to the employer allows the employer to submit a response to the agency which better promotes an informed agency decision.

PAGA Notice Must Suggest Claims on Behalf of Multiple Employees

Khan v. Dunn-Edwards Corp. highlights how important it is for an aggrieved employee to properly give notice to the LWDA and his employer. Mr. Khan brought a PAGA claim against Dunn-Edwards Corp., his former employer, for wage and hour violations including untimely termination pay and inadequate wage statements. He provided the LWDA and Dunn-Edwards with the following notice:

“This correspondence shall constitute written notice under Labor Code § 2699.3 of my claims against my former employer, Dunn-Edwards . . . [that Dunn-Edwards violated] Labor Code § 226(a) by failing to identify all of the required information on my final paycheck . . . [and violated] Labor Code §§ 201-203 for failing to pay all of my earned wages immediately upon termination[.]”

The problem, the court explained, was that his notice did not reference any other current or former employees besides himself.

As Mr. Khan’s notice only applied to him, it did not give the LWDA an “adequate opportunity” to decide whether to allocate resources to investigate the PAGA action. Mr. Khan only referred to himself, and the agency may have decided no investigation was needed. Additionally, his notice failed to provide Dunn-Edwards with an adequate opportunity to respond to the LWDA because it suggested only an individual action. While a PAGA claim is a representative action, permitting only individual penalties appears inconsistent with PAGA’s objectives[.]”

The Takeaway

You must make it very clear when giving PAGA notice that you pursue the claim on behalf of yourself and others. Use words or phrases like “employees,” “myself and employees,” “employees’ wage statements,” etc. If you have questions regarding wage and hour law including bringing a potential PAGA claim, please contact your local attorney.