California has a unique labor law: the Labor Code Private Attorneys General Act. It’s usually called PAGA. This law was enacted in 2004.
PAGA allows workers to act as private attorneys general. What does this mean? Employees can sue their employers directly on behalf of themselves, other affected employees, and the State of California.
PAGA’s main goal is widespread labor law compliance. It penalizes employers for violations and aims to deter future wrongdoing by employers statewide. It isn’t primarily designed just to recover back wages for individual employees, though related claims might do that.
But employees do receive a portion of the penalties collected. When a PAGA lawsuit is successful, the employer pays penalties. Currently, the law directs 25% of these collected penalties to the affected workers. The other 75% goes to the state’s Labor and Workforce Development Agency (LWDA).
This article will help you figure out if filing a PAGA claim is the right choice for your situation. We’ll start with some background on PAGA in California and then explain the types of violations that can be addressed with a PAGA claim.
After that, we’ll discuss what you need to consider before filing a PAGA claim. And finally, we’ll answer some common questions about PAGA.
A Brief History of California’s Private Attorneys General Act
California created the Private Attorneys General Act (PAGA) in 2004. State labor agencies faced challenges fully enforcing the complex Labor Code across millions of workplaces. PAGA aimed to improve enforcement by empowering employees themselves.
Under PAGA, workers can act as “private attorneys general.” This means they can sue employers directly to recover civil penalties for certain Labor Code violations. These lawsuits are brought on behalf of the employee, other affected workers, and the State of California.
Critically, courts view PAGA actions primarily as law enforcement actions pursued for the state. This legal status has significant implications.
One major consequence involves arbitration agreements. The California Supreme Court decided Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348. It held that employers generally can’t force employees to waive their right to bring representative PAGA claims (seeking penalties for others) in pre-dispute arbitration agreements.
A more recent decision clarified arbitration issues further. Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 confirmed employees retain standing to pursue representative PAGA claims in court. This holds true even if their individual legal claims must be sent to arbitration.
Many employers strongly oppose PAGA, sometimes calling it the “Sue Your Boss Law.”
A key reason for employer opposition involves scope. PAGA allows one employee to seek penalties for violations affecting numerous current and former employees. It achieves this without needing to meet the strict requirements for class action certification. This structure bypasses limitations often found in individual arbitration agreements designed to prevent large group actions.
To initiate a PAGA case, the employee filing suit must have personally suffered at least one underlying Labor Code violation alleged in the claim. But their lawsuit can then seek penalties related to violations suffered by all “aggrieved employees” during the relevant timeframe.
Despite employer opposition, PAGA remains impactful. Thousands of PAGA claims are filed each year in California.1 Many lead to significant penalties and encourage workplace compliance.
PAGA recently survived a major repeal threat. An employer-backed ballot initiative qualified for the 2024 election. But a legislative compromise was reached in mid-2024. Governor Newsom, legislators, business groups, and labor agreed to reforms instead. PAGA was kept off the ballot and remains California law.
In fact, the law has been so successful that employers proposed a ballot initiative for 2024 that could have repealed the law. On June 21, 2024, though, Governor Newsom and the state legislature reached a compromise with business and labor groups to keep PAGA off the ballot.
This deal led to substantial PAGA reforms being enacted through legislation (AB 2288 / SB 92). So, for now, PAGA claims continue to be a fixture of California employment law.
Now, let’s look at the specific types of Labor Code violations that employees can pursue through a PAGA claim.
What Types of Labor Violations Can Be Enforced Under PAGA?
PAGA allows employees to pursue claims for a wide range of labor violations.
Generally, violations covered by PAGA fall into three broad types:
Essentially, PAGA can potentially cover nearly any violation of the Labor Code. But some types of violations are more frequently brought as PAGA claims.
Here are common examples often seen in PAGA actions:
Health and safety violations are also frequently pursued under PAGA. Examples include:3
Other common violations sometimes pursued via PAGA include:
Remember, PAGA is just one potential legal tool. It isn’t always the best or only option for addressing every type of labor law violation.
Now, let’s discuss key things to consider before deciding to file a PAGA claim.
Important Considerations Before Filing a PAGA Claim
Filing a PAGA claim isn’t always the only or best approach. Sometimes an individual lawsuit is more suitable. A class action lawsuit might also be an option.
Consulting an experienced employment lawyer is crucial. They can help analyze your situation and determine the best legal strategy for you.
Look for lawyers experienced in PAGA, individual, and class action employment cases. Many offer a free initial consultation to discuss specifics.
Consider the primary goal of each type of lawsuit. PAGA claims mainly seek civil penalties against the employer. The aim is broad labor law enforcement benefiting the state. Aggrieved employees receive only a share (currently 25%) of collected penalties.
An individual lawsuit, however, focuses on your personal harm and losses. You can seek restitution for your actual damages. Potential damages might include lost wages (back/front pay), emotional distress compensation, and attorney’s fees.
Can you file both PAGA and individual claims? Often, yes. But pursuing both types simultaneously can create complexity. It involves strategic challenges best discussed with an attorney.
Arbitration agreements significantly impact this decision. Did you sign one with your employer? PAGA claims themselves generally cannot be forced into private arbitration. They typically proceed in court.
But your individual claims (like for discrimination or breach of contract) might be subject to mandatory arbitration based on your agreement. This could potentially split your case between court (PAGA) and arbitration (individual claims). Resolving the arbitration might delay the PAGA court case.
Filing only a PAGA claim usually avoids this arbitration issue. The entire representative action stays in court.
How does PAGA compare to a class action? PAGA often has procedural advantages. It doesn’t require formal class certification by a judge. It also doesn’t require getting consent from all affected employees. This can sometimes make PAGA cases easier and faster to initiate.
Class actions, conversely, allow groups of employees to seek broader types of damages beyond just PAGA penalties. Choosing the right path depends heavily on the specific facts and your goals, and it’s important to get good legal advice.
What is the Process for Filing a PAGA Claim?
Filing a PAGA claim involves specific steps before court. You must start by sending detailed written notice.4
The notice goes to two parties: your current or former employer and the California Labor and Workforce Development Agency (LWDA).
This notice must describe the alleged Labor Code violations. It needs supporting facts and legal theories. Working with a lawyer to draft this notice is highly recommended.
Are you worried about employer retaliation for filing? California has strong laws protecting employees who pursue PAGA claims. See our Guide to Employer Retaliation Under California Law for details.
The LWDA reviews your submitted notice. They have a set time (usually up to 65 days) to decide whether to investigate. The agency might take over the enforcement action itself. Or it may notify you it won’t investigate.
If the LWDA decides not to investigate or if their time expires, you then gain the right to file your PAGA lawsuit in civil court. This notice process gives the state agency the first opportunity to act.
It also provides a limited chance for employers to fix some violations. This is called the opportunity to cure. But the right to cure applies only to certain less serious Labor Code violations.
Serious violations generally cannot be cured under PAGA. Examples include violations involving health or safety hazards, child labor, or illegal retaliation. Intentional violations or repeat offenses often can’t be cured either.
If the issue isn’t resolved after the notice process, you can proceed by filing a lawsuit. You sue as a representative of the state seeking civil penalties for the violations.
Keep in mind that you generally have only one year from the date of the most recent violation to file a PAGA claim.5 This statute of limitations typically runs from the date of the last Labor Code violation alleged in your notice. Acting promptly is crucial.
One final key requirement: You must be an aggrieved employee. This means you personally suffered one or more of the Labor Code violations listed in the PAGA notice.
Answers to Commonly Asked Questions About PAGA Claims
Let’s close by answering a few commonly-asked questions about PAGA claims in California.