The Private Attorney General’s Act
The Private Attorney General’s Act
Labor Code 2699 is the Private Attorney General’s Act (PAGA) which creates a private right of action for employees to enforce any provision of the Labor Code, with the exception of a few workers’ compensation provisions. This law authorizes any employee to bring a civil action against his or her employer on behalf of himself or others, and to collect attorneys’ fees, for employment law violations that are not pursued by a governmental agency. The statute allows any employee to bring class action lawsuits against employers also.
This means that employees may be able to sue for Labor Code violations under PAGA where there is no other private right of action. Also, employees can sue for Labor Code violations when they are not personally aggrieved. There are specific procedural and administrative requirements that must be met before ane employee can sue for Labor Code violations under Labor Code section 2699.
Here is a summary of the Labor Code section 2699:
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For every Labor Code provision, if no current penalty exists, Section 2699 establishes a $100 penalty for the first violation, and $200 for each subsequent violation. Such penalties are assessed on a per employee, per pay period basis. (Labor Code §2699(c).)
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An aggrieved employee is defined as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Labor Code §2699(c).)
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Section 2699 deputizes an aggrieved employee as a “private attorney general” to enforce Labor Code provisions. An aggrieved employee can recover a percentage of civil penalties through a civil action filed on behalf of himself or herself and others. (Labor Code §2699(c), (e)(2).
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An employee who prevails is entitled to an award of attorneys’ fees and costs. (Labor Code §2699(f).)
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This right of action is in addition to any other pre-existing remedies under state or federal law. An action under Section 2699 does not limit an employee’s right to pursue separate or concurrent remedies with an action taken under this section. (Labor Code §2699(f).)
Procedural Requirements
There are significant procedural requirements which must be met before a person can bring an action under Labor Code section 2699. The appropriate procedure depends on the violation. The applicable Labor Code sections basically break the violations into three categories. But for any violation, the employee must first notify the employer and the state agency of the violation. All time limits then run from the postmark date of the notice to the state agency.
The first category of possible Labor Code violations relates to very serious Labor Code violations. This category includes an extensive list of Labor Code violations set forth in Labor Code section 2699. The most common violations under this category can be summarized as follows:
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Violations relating to the setting and paying wages and salaries;
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Violations relating to hours of work, meals and rest breaks;
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Employment of minors;
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Employment under state and public works contracts;
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Retaliation for complaints about OSHA violations (6310), participating in a complaint (6399.7) or refusing to do something unsafe (6311); and
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Protection of whistleblowers (1102.5).
The procedures that must be followed before an employee can sue under PAGA are very important and must be complied with. For a full rendition of all of the procedural requirements that must be satisfied, please refer to Labor Code section 2699. This summary is not intended to be a full and complete recitation of the procedural requirements necessary before pursuing a PAGA claim and no one should rely on any summary herein as a authority on the PAGA procedural requirements. The procedural requirements summarized herein are exactly that: a summary of something more specific.
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An employee alleging a violation of one of these violations must notify the employer and the Labor and Workforce Development Agency (LWDA). The LWDA must then notify the employer and employee within 33 calendar days about whether the LWDA intends to investigate the matter. If the LWDA advises it will not investigate, or if no notice is provided within 33 days as was required, then the employee may file a lawsuit.
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If the LWDA notifies the employer and employee within 33 calendar days that it will investigate, then the LWDA has 120 calendar days to complete its investigation. The employee may file a lawsuit if either the LWDA decides not to cite the employer, (the LWDA is supposed to notify the employer and employee within 5 working days of such a decision) or the LWDA fails to issue a citation against the employer within 158 calendar days.The second category of Labor Code violations that one of our clients may want to sue for relates to OSHA health and safety violations (except the whistleblower/retaliation sections noted above [6310, 6311, 6399.7]).
The second category of violations includes all violations of the Labor Code which relate to occupational health and safety issues. An employee alleging a violation of saftey standard must notify the employer and the Division of Occupational Health and Safety (DOSH) and also the LWDA. After receiving notice of the claimed violation, DOSH must inspect or investigate.
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If DOSH issues a citation, the employee cannot file a lawsuit. DOSH must follow up and notify the employer and employee within 14 calendar days of certifying that the violation has been corrected.
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If DOSH decides not issue a citation, the employee may challenge that call in court. If the court directs DOSH to issue a citation, the employee cannot file a lawsuit.
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If DOSH fails to inspect or investigate, the employee may proceed along the same path as with the third categories of violations. (See infra.)
In addition, no private lawsuits may be filed where the employer and DOSH have an existing agreement for long-term abatement of objectionable conditions.
The third category of Labor Code violations relates to any Labor Code violation not addressed elsewhere. This last category is a catch-all for all other alleged Labor Code violations, as well as failure of DOSH to inspect or investigate.
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Here, after an employee notifies the employer and appropriate state agency, the employer has 33 days to bring itself within compliance with the law and “make whole” any aggrieved employee and notify the employee and state agency of the action taken.
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If the employer’s actions do not timely cure the violation, the employee may then file a private action.
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If the employee believes that the employer’s actions did not cure the violation, the employee may notify the state agency. The agency can then take up to 17 days to investigate, and grant the employer an additional 3 business days to cure the violation. If the state agency determines that the alleged violation has not been cured, the employee may then file suit.
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If the state agency determines that the alleged violation has been cured, but the employee disagrees, the employee may appeal the state agency’s decisions. At this point, things get a bit remote and this memorandum will not go into the appeal process. But if an employee is successful on an appeal, he or she may be able to sue.
Other Important Procedures In PAGA:
Judicial Discretion Over Award Amounts
A judge can reduce civil penalties where appropriate. A court is authorized to award a lesser amount than the maximum civil penalty amount allowed if to do so would otherwise result in an award that is “unjust, arbitrary and oppressive, or confiscatory.”
No Cases Involving Only Posting Violations
An action cannot be brought for any violation of a posting, notice, agency reporting, or filing requirement except where the requirement involves mandatory payroll or workplace injury reporting.
A Plaintiff Only Gets 25% of the Penalties Recovered
75% of the penalties recovered are given to the LWDA. The employee can only recover the remaining 25%, plus attorney’s fees and costs.
Prohibition on Retaliation
There is a separate anti-retaliation provision related to Labor Code section 2699. To protect employees from retaliation or discrimination for notifying the LWDA or the employer of a violation, an employer is prohibited from retaliating against any employee who brings a civil action under Section 2699.
By Janeen Carlberg