PAGA Basics FAQ

The Private Attorneys General Act (PAGA), codified under California Labor Code Section 2698 et seq., is a unique enforcement mechanism that deputizes employees to act as private attorneys general on behalf of the State of California. PAGA allows aggrieved employees to bring civil actions against employers for Labor Code violations on behalf of themselves, other affected employees, and the state.

Under this law, employees can recover civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency (LWDA). The penalties are divided: 75% goes to the LWDA and 25% is distributed to the aggrieved employees. PAGA serves a critical public policy function by incentivizing private enforcement of labor standards when state resources are limited.

Employees can pursue PAGA claims for a wide range of violations including wage and hour violations, meal and rest break violations, itemized wage statement errors, and other Labor Code infractions. This mechanism has become one of the most powerful tools for enforcing employee rights in California workplaces.

An "aggrieved employee" is specifically defined under Labor Code Section 2699(c) as any person who was employed by the alleged violator and against whom one or more of the alleged Labor Code violations was committed. This definition is relatively broad and includes both current and former employees who have personally experienced at least one Labor Code violation during their employment.

The key requirement is that the employee bringing the PAGA action must have standing by having suffered at least one violation themselves, even if they are pursuing penalties for other violations they did not personally experience. Courts have held that an employee who experiences even a single violation gains standing to bring representative claims under PAGA for other violations affecting fellow employees.

This low threshold for standing reflects the legislative intent to empower employees to serve as private enforcers of labor standards. The employee does not need to show that they suffered all of the violations alleged in the complaint, only that they were personally subjected to at least one violation by the employer.

Before filing a PAGA lawsuit, employees must satisfy mandatory notice requirements outlined in Labor Code Section 2699.3. The aggrieved employee must provide written notice by online filing with the Labor and Workforce Development Agency (LWDA) and by certified mail to the employer. The notice must identify the alleged Labor Code violations, the specific sections violated, and the facts and theories supporting each violation.

The employer then has 33 days from the postmark date to cure the alleged violations. If the LWDA wishes to investigate the violations itself, it must notify the employee and employer within 33 days; otherwise, the employee may proceed with the lawsuit after 65 calendar days from the postmark date of the notice to the LWDA and employer.

This exhaustion requirement is strictly enforced, and failure to comply with proper notice procedures can result in dismissal of the PAGA claim. The notice must be sufficiently specific to allow the employer to assess and potentially cure the violations, and it provides the state an opportunity to pursue enforcement itself before private litigation proceeds. This administrative exhaustion protects both the employer's right to cure violations and the state's primary enforcement authority.

The enforceability of PAGA waivers in arbitration agreements has been subject to significant legal evolution. In Iskanian v. CLS Transportation Los Angeles, LLC (2014), the California Supreme Court held that PAGA claims could not be waived in employment arbitration agreements because such waivers interfere with the state's enforcement of labor laws.

However, the U.S. Supreme Court's decision in Viking River Cruises, Inc. v. Moriana (2022) partially changed this landscape under the Federal Arbitration Act. Viking River held that when an employment agreement contains an arbitration clause and PAGA waiver, the employee's individual PAGA claim must be arbitrated, but simultaneously held that the representative PAGA claims must be dismissed if the individual claim is compelled to arbitration, based on standing principles.

Following Viking River, California courts have grappled with how to apply this ruling. In Adolph v. Uber Technologies, Inc. (2023), the California Supreme Court clarified that if an employee's individual PAGA claim is sent to arbitration, they do not automatically lose standing to pursue representative claims in court. The current state of the law requires careful analysis of each arbitration agreement's specific language and procedural posture to determine enforceability.

PAGA authorizes employees to recover civil penalties for violations of virtually any provision of the California Labor Code for which the Legislature has authorized civil penalties. This encompasses an extremely broad range of workplace violations.

Common PAGA claims include: wage and hour violations such as failure to pay minimum wage or overtime (Labor Code Sections 1194, 1197, 1198), meal and rest break violations (Labor Code Sections 512, 226.7), failure to provide accurate itemized wage statements (Labor Code Section 226), failure to timely pay wages upon termination (Labor Code Sections 201-203, known as waiting time penalties), failure to reimburse business expenses (Labor Code Section 2802), failure to pay reporting time or split shift premiums, misclassification of employees as independent contractors, and failure to maintain required records.

The Labor Code contains hundreds of provisions with civil penalty provisions that can potentially be enforced through PAGA. Some of the most significant penalties attach to wage statement violations, which carry penalties of $250 for initial violations and $1,000 for subsequent violations per employee per pay period, potentially resulting in substantial aggregate penalties in representative actions.

Civil penalties under PAGA are calculated based on the specific Labor Code provisions violated, as outlined in Labor Code Section 2699(f). For most Labor Code violations, the default penalty structure is $100 per employee per pay period for initial violations and $200 per employee per pay period for subsequent violations.

However, certain specific violations carry different penalty amounts. For example, wage statement violations under Labor Code Section 226(e) carry penalties of $250 for initial violations and $1,000 for subsequent violations. Waiting time penalties under Labor Code Section 203 are calculated differently, based on the employee's daily rate of pay for up to 30 days.

The total penalty exposure is calculated by multiplying the per-employee, per-pay-period penalty by the number of affected employees and the number of pay periods during which violations occurred (subject to statutory limitations periods). Of the total civil penalties recovered, 75% is paid to the Labor and Workforce Development Agency, and 25% is distributed to the aggrieved employees. Courts also have discretion to reduce penalties based on factors such as the nature and severity of the violation, the employer's good faith, history of violations, and financial condition, as specified in Labor Code Section 2699(e).

PAGA claims are subject to a one-year statute of limitations pursuant to Code of Civil Procedure Section 340(a), which applies to statutory penalty actions. This relatively short limitations period begins to run from the date of the alleged violation. However, the limitations period is tolled (paused) during the mandatory administrative exhaustion period while the employee provides notice to the LWDA and employer and waits the required 65 days before filing suit, as established by the California Supreme Court in Caliber Bodyworks, Inc. v. Superior Court (2021).

The one-year statute of limitations can create strategic considerations for employees and makes timely filing of PAGA notices critical. For continuing or repeated violations, each violation may trigger its own limitations period. Courts apply the relation-back doctrine to amendments adding new PAGA claims or violations if they arise from the same course of conduct alleged in the original complaint and notice.

Employers cannot contractually shorten the one-year limitations period for PAGA claims, as such provisions would be void as against public policy. The short limitations period reflects the penalty nature of PAGA actions and encourages prompt enforcement of labor standards while memories and evidence are fresh.

No, PAGA plaintiffs do not need to certify a class action to pursue representative claims on behalf of other aggrieved employees. This is one of the key distinctions between PAGA representative actions and class actions. PAGA claims are brought as representative actions under the statutory authority of Labor Code Section 2699, not under Code of Civil Procedure Section 382 which governs class actions.

Therefore, PAGA plaintiffs are not required to satisfy the numerosity, commonality, typicality, and adequacy requirements of class certification under California Rules of Court Rule 3.769. The California Supreme Court confirmed in Arias v. Superior Court (2009) that PAGA actions are not class actions and do not require class certification procedures.

Instead, once an aggrieved employee has standing by having experienced at least one Labor Code violation, they can pursue civil penalties on behalf of all affected employees without seeking court approval to represent others. This procedural advantage makes PAGA claims more streamlined than traditional class actions and easier to prosecute. However, PAGA plaintiffs may simultaneously pursue both a PAGA representative action and a class action for damages in the same lawsuit, though these are distinct causes of action with different procedural requirements and remedies.

Employers generally cannot require employees to waive or release unaccrued PAGA claims as a condition of employment or in pre-dispute arbitration agreements, as such waivers undermine the state's enforcement interests and are contrary to public policy. The California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) held that prospective waivers of PAGA standing violate public policy because PAGA claims are designed to benefit the public and state, not just individual employees.

However, employees can release PAGA claims that have already accrued as part of a settlement agreement, provided certain procedures are followed. Individual settlement agreements that release PAGA claims must be carefully drafted to ensure they do not improperly extinguish the representative component of PAGA claims that belong to other aggrieved employees and the state.

When settling representative PAGA claims on behalf of other employees, Labor Code Section 2699(l)(2) requires court approval and notice to the LWDA. The court must review the settlement for fairness and reasonableness, considering factors such as the strength of the plaintiff's case, the amount offered in settlement, the extent of discovery completed, and the opinions of counsel. Any settlement that includes release of PAGA claims should expressly allocate settlement amounts between PAGA penalties and other claims, as PAGA penalties must be distributed according to the statutory 75%-25% split between the LWDA and employees.

Yes, attorneys' fees and costs are recoverable in PAGA actions, though the statutory framework differs from typical employment litigation. Labor Code Section 2699(g)(1) provides that civil penalties recovered by aggrieved employees shall be distributed as follows: 75% to the Labor and Workforce Development Agency and 25% to the aggrieved employees. Attorneys' fees and costs are awarded from the penalties recovered and are typically paid from the 25% share allocated to the aggrieved employees, though courts have discretion in allocating fee awards.

The statute does not specify a method for calculating fees, so courts typically apply the lodestar method (reasonable hourly rate multiplied by hours reasonably expended), potentially adjusted by a multiplier based on factors such as the novelty and difficulty of the issues, results obtained, and contingent nature of the fee agreement. Some courts have approved fees calculated as a percentage of the total PAGA recovery.

Unlike many employment statutes that provide for one-way fee shifting (fees only to prevailing plaintiffs), PAGA's fee provision is more nuanced. Prevailing PAGA plaintiffs are generally entitled to reasonable attorneys' fees, while prevailing employers may only recover fees in limited circumstances where the action was objectively without foundation when brought or the plaintiff continued to litigate after it clearly became so. The availability of attorneys' fees incentivizes attorneys to take PAGA cases and serves the law's purpose of encouraging private enforcement.