Table Of Contents
PREFACE
CHAPTER 1 THE PRIVATE ATTORNEYS GENERAL ACT OF 2004
1.1 The Context In Which PAGA Was Enacted And Its Impact
1.2 PAGA’s Focus On Enforcement
1.3 PAGA Creates New Remedies Without Creating New Substantive Rules
1.4 The Reduced Role Of State Enforcement Agencies
1.5 PAGA’s Enforcement System
1.6 The Relevance Of California’s Class Action Requirements
1.7 Abbreviations Used In The Manual
1.8 Other Important Resources
CHAPTER 2 OVERVIEW OF PAGA
2.1 The Use Of Civil Actions To Enforce California’s Wage And Hour Laws
2.2 Law Enforcement Actions Under PAGA
2.3 Section 558 Claims Against Employers And Individuals
2.4 Minimum Wage Claims Against Employers And Individuals Under Section 1197.1
2.5 Labor Code Section 1198’s Pathway To Wage Order Enforcement
2.6 Varied Motivations For PAGA Actions
2.7 PAGA Establishes A Punishment System While Trivializing The Critical Need For Education And Information
2.8 The Statutory Structure Of PAGA
2.9 The Enactment Of PAGA And Its Amendments
2.10 Key Definitions And Rules In PAGA
2.11 Construction And Janitorial Employees Covered By CBAs Are Excluded From PAGA
2.12 Posting, Notice, Reporting And Filing Violations
2.13 PAGA’s Cure Provisions
2.14 PAGA Statistics
CHAPTER 3 PAGA’S EXHAUSTION, ADMINISTRATIVE AND PROCEDURAL STANDARDS
3.1 Obligations To Provide Proper Notice And Exhaust Administrative Remedies
3.2 The Categories Of Violations Identified In PAGA
3.3 Claims Based On Specified Statutes – Category 1 Statutes
3.4 Claims Based On Other Labor Code Provisions – Category 2 Statutes
3.5 Claims Based On Occupational Safety Violations
3.6 Scope Of Claims That An Aggrieved Employee Can Pursue
CHAPTER 4 REPRESENTATIVE ENFORCEMENT ACTIONS AND CLASS ACTIONS
4.1 Class Action Requirements
4.2 Distinctions Between Class Actions And PAGA Actions
4.3 The Basic Class Action Standards Under California Law In The CCP
CHAPTER 5 THE CALIFORNIA SUPREME COURT’S VIEW OF PAGA
5.1 The California Supreme Court’s Perspective On PAGA
5.2 Arias v. Superior Court: The Inapplicability Of Class Action Standards To PAGA Actions And The Effect Of PAGA Judgments
5.3 Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court: A Labor Union Cannot Bring A PAGA Action
5.4 Iskanian v. CLS Transportation Los Angeles, LLC: The Effect Of The FAA And Class Action Waivers
5.5 Williams v. Superior Court: Discovery Rights In PAGA Actions
5.6 Mendoza v. Nordstrom, Inc.: PAGA Authorizes A Representative Action Without The Need For Class Certification
5.7 ZB, N.A. v. Superior Court: Employees Can Pursue Civil Penalties Through PAGA, But Not Claims For Unpaid Wages Or Compensatory Relief
5.8 Kim v. Reins Int’l California, Inc.: Employees Do Not Lose Standing To Pursue PAGA Claims By Settling And Dismissing Their Individual Claims
5.9 Viking River Cruises, Inc. v. Moriana: FAA Preempts California Laws That Preclude Division Of Individual PAGA Claims
CHAPTER 6 ITEMIZED WAGE STATEMENT AND PAGA CLAIMS
6.1 California’s Overlapping Wage Statement And PAGA Rules
6.2 Injunctive Relief
6.3 Payroll Companies
6.4 Government Employer Exemption
6.5 Residential Worker Exemption
6.6 Right to Inspect Or Receive A Copy Of Pay Records
6.7 Relationship With Unfair Competition Claims
6.8 PAGA’s Applicability To Pay Stub Violations
6.9 The Overlapping Regulation Of Wage Statements Under PAGA And Labor Code Section 226
6.10 PAGA And Labor Code Section 226 Issues Involving Notice Of Paid Sick Leave
CHAPTER 7 ARBITRATION OF PAGA CLAIMS
7.1 A Waiver Of The Right To Bring A PAGA Claim In Court Cannot Be Enforced
7.2 Under Ninth Circuit Authority, Predispute Arbitration Agreements Can Be Enforced To Compel The Arbitration Of PAGA Claims
7.3 The U.S. Supreme Court Affirmed The Ability To Compel PAGA Claims To Arbitration
7.4 The California Supreme Court Will Weigh In On The Fate Of Representative PAGA Claims
7.5 Post-Dispute Arbitration Agreements Are Enforceable
7.6 Agreements To Arbitrate Non-PAGA Claims
CHAPTER 8 LITIGATION CONSIDERATIONS
8.1 Removal And The Class Action Fairness Act
8.2 PAGA And Venue
8.3 The Complexity Of PAGA Actions
8.4 PAGA Discovery – Obtaining Aggrieved Employee Contact Information
8.5 The Need For An Adequate Trial Plan
8.6 PAGA Actions And Manageability
8.7 There Is No Jury Trial Right In PAGA Actions
8.8 Staying PAGA Actions Based Upon The Exclusive Concurrent Jurisdiction Rule
8.9 Bifurcation Of Trials
8.10 Courts Can Lower Penalty Awards Under PAGA
8.11 Establishing A Right To PAGA Penalty Recoveries
8.12 Burden of Proof
8.13 Claims That May Be Brought Under PAGA
CHAPTER 9 REMEDIES
9.1 Penalties Recoverable Under PAGA
9.2 Recovery Of Penalties vs. Victim-Specific Relief
9.3 Courts Have Discretion To Award Lesser Penalties
9.4 Injunctive Relief
9.5 The Effect Of A PAGA Judgment
9.6 The Scope Of PAGA Judgments
CHAPTER 10 DEFENSES IN PAGA LITIGATION
10.1 Introduction
10.2 Failure To Exhaust
10.3 Statute Of Limitations
10.4 Lack Of Standing And Lack Of Violation
10.5 Affirmative Defenses
10.6 Motions To Strike
10.7 Construction And Janitorial Employees Covered By Collective Bargaining Agreements
10.8 Other Defenses
CHAPTER 11 SETTLEMENT OF LABOR CODE AND PAGA CLAIMS
11.1 PAGA’s Statutory Framework On Settlement
11.2 Factors Courts Consider When Reviewing PAGA Settlements
11.3 The Res Judicata Impact Of A PAGA Settlement
11.4 Where The Named Plaintiff Has Settled On An Individual Basis
11.5 Using Individual Settlements With Employees To Resolve Claims
CHAPTER 12 APPEALS
12.1 Appeals In PAGA Actions
12.2 The Death Knell Doctrine Does Not Apply Where A Pending PAGA Claim Must Be Adjudicated After Class Certification Is Denied
12.3 Even If The Death Knell Doctrine Does Not Apply, A Reviewing Court Has Discretion To Consider The Merits Of A Premature Appeal By Treating It As A Writ
12.4 A Defendant May Not Appeal An Adverse PAGA Ruling Until A Final Judgment In The Case Is Issued
12.5 Standing To Appeal PAGA Settlements
12.6 PAGA Claims Are Subject To An Automatic Bankruptcy Stay
12.7 The LWDA’s Decision On A Cure Dispute May Be Appealed To The Appellate Division Of The Superior Court
CHAPTER 13 COMPLIANCE AUDITS
13.1 The Legislature’s Emphasis On Compliance
13.2 The Importance Of Self Audits
13.3 Audit Process And Subjects
13.4 Need For Legal Counsel
CHAPTER 14 LABOR CODE CHECKLISTS AND SUMMARIES
14.1 The Pursuit Of Penalties Under The PAGA
14.2 Labor Code Checklist
14.3 High Risk Areas
CHAPTER 15 ADDITIONAL TARGET AREAS FOR AUDITS
CHAPTER 16 LEAVES OF ABSENCE AND TIME OFF RIGHTS
16.1 Overview
16.2 Audit Issues
16.3 Additional Resources
CHAPTER 17 POSTING AND NOTIFICATION OBLIGATIONS
APPENDIX A THE LABOR CODE PRIVATE ATTORNEYS GENERAL ACT OF 2004 Labor Code §§ 2698 – 2699.6
APPENDIX B SB 796 — THE PRIVATE ATTORNEYS GENERAL ACT OF 2004 (Signed October 12, 2003)
APPENDIX C SENATE RULES COMMITTEE REPORT ON SB 796 (September 11, 2003)
APPENDIX D ASSEMBLY FLOOR ANALYSIS OF SB 796 (September 2, 2003)
APPENDIX E SB 899 (Signed April 19, 2004)
APPENDIX F SB 1809 (Signed August 11, 2004, As An Urgency Statute)
APPENDIX G ASSEMBLY FLOOR ANALYSIS OF SB 1809 (July 29, 2004)
APPENDIX H SENATE RULES COMMITTEE REPORT ON SB 1809 (July 29, 2004)
APPENDIX I SB 940 (Effective January 1, 2009)
APPENDIX J AB 1506 (Effective October 2, 2015)
APPENDIX K SB 836 (Effective January 1, 2016)
APPENDIX L AB 235 (Stats. 2018, Ch. 704518) (Effective September 22, 2018)
APPENDIX M AB 1654 (Effective January 1, 2019)
APPENDIX N FORMS OF LABOR & WORKFORCE DEVELOPMENT AGENCY
APPENDIX O LOS ANGELES COUNTY SUPERIOR COURT FORM CREATED TO EVALUATE CLASS ACTION SETTLEMENTS
APPENDIX P LOS ANGELES COUNTY SUPERIOR COURT CLASS ACTION CASE MANAGEMENT ORDER
APPENDIX Q LOS ANGELES SUPERIOR COURT WAGE AND HOUR SETTLEMENT AGREEMENTS (LACIV296, LACIV297, LACIV298)
APPENDIX R LABOR CODE INDEX
APPENDIX S CASE TABLE
SUBJECT INDEX
About The Authors
Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.
Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.
Ryan J. Krueger is a Partner with Sheppard, Mullin, Richter & Hampton LLP in the firm’s Los Angeles office. He specializes in labor and employment matters on behalf of employers, including wage and hour violations, employment discrimination, wrongful termination and sexual harassment. Mr. Krueger has experience in all aspects of employment litigation, including brief writing and oral argument, taking and defending depositions, and negotiating settlements. He has also second chaired multiple trials and arbitrations, and argued before the California Court of Appeal. Mr. Krueger also regularly counsels employers regarding California and federal employment law issues.
Ryan is a co-author of the California’s Private Attorneys General Act (PAGA) Litigation and Compliance Manual, a contributing author to the Employer’s Guide to COVID-19 and Emerging Workplace Issues and the ALERT Newsletter. He is a co-speaker at the Castle Publications’ Seminars as well as the Labor Law Update for Sheppard Mullin.
He received his J.D. from the University of California, Los Angeles and his B.A. from the University of Wisconsin, with distinction. During law school, Mr. Krueger served as extern to the Honorable Morton Denlow, U.S. District Court for the Northern District of Illinois. He is admitted to practice in all California state courts, along with the United States District Court for the Central District of California and the Ninth Circuit Court of Appeals.
Tyler J. Johnson is an associate with Sheppard, Mullin, Richter & Hampton LLP in the firm’s Los Angeles Office. Mr. Johnson represents employers in every stage of the litigation process, from prelitigation disputes to class certification hearings and trials. He represents businesses of every size, and has extensive experience in the healthcare, agricultural, fashion, and temporary staffing industries. Mr. Johnson defends employers against claims of discrimination, harassment, and retaliation, and has prevailed at trial in a pregnancy discrimination case. Tyler also routinely represents businesses in complex litigation, including proposed class actions and representative actions under the Private Attorneys General Act.
Mr. Johnson has defeated class certification in a number of cases and frequently obtains summary judgment for employers.
Tyler received his J.D. degree from the Pepperdine Caruso School of Law and his B.A. from the University of Maryland. Mr. Johnson served as a Law Clerk to the Honorable Ronald S.W. Lew of the U.S. District Court for the Central District of California.
