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Employment · Employer defense
PAGA and class action defense
California’s Private Attorneys General Act lets an employee sue for civil penalties on behalf of the state and other employees for Labor Code violations. Fernald & Zaffos defends employers against PAGA notices and representative actions, and against wage and hour class actions, including under the 2024 reforms that let employers cure some violations and cap penalties.
Leads this practice
Adam P. Zaffos · Partner
More than 25 years of complex litigation, including employment and class actions as a senior litigator at The Wonderful Company. Admitted in California.
How a PAGA case starts
A PAGA case starts with a written notice the employee files with the Labor and Workforce Development Agency and serves on the employer (Lab. Code § 2699.3). The employee cannot file suit until the LWDA notice period passes, which gives the employer a window to investigate and, in some cases, cure.
The 2024 reforms
Legislation effective for notices filed on or after June 19, 2024 changed PAGA in ways that matter to employers:
- The employee must have personally suffered each violation claimed
- Employers with fewer than 100 employees can propose a cure within 33 days of the notice
- Larger employers can ask the court for an early evaluation conference
- Penalties are capped at 15% for employers that took reasonable steps to comply before the notice, and 30% for those that take them within 60 days after
- Courts can limit the scope of claims to keep a trial manageable
Arbitration and PAGA
An arbitration agreement can send an employee’s individual PAGA claim to arbitration (Viking River Cruises v. Moriana (2022) 596 U.S. 639), but the employee keeps standing to pursue the non-individual claims in court (Adolph v. Uber Technologies (2023) 14 Cal.5th 1104). Strategy depends on both.
Class actions
Wage and hour class actions seek unpaid wages for a group of employees and require class certification. We have litigated wage class claims in Nevada state court over many years, and we look early at whether common questions predominate and whether arbitration agreements apply.
Deadline
The response window is short
Small employers have 33 days from the notice to propose a cure. Call as soon as a PAGA notice arrives. See our guide on how to respond to a PAGA notice.
Common questions
Don’t see yours? Call (323) 410-0300.
We received a PAGA notice. What happens next?
The employee must wait for the LWDA notice period before suing. Use that time to investigate, preserve records and, if eligible, propose a cure or request an early evaluation conference.
Can we cure the violations?
Under the 2024 reforms, some violations can be cured. Employers with fewer than 100 employees can submit a cure proposal within 33 days; larger employers can seek an early evaluation conference.
Does an arbitration agreement stop a PAGA claim?
It can send the employee’s individual PAGA claim to arbitration, but the non-individual claims generally stay in court.
How are PAGA penalties calculated?
Generally $100 per employee per pay period for each violation, subject to caps under the 2024 reforms for employers that took reasonable compliance steps.
What is the difference between a PAGA case and a class action?
A class action seeks damages for a certified class. A PAGA action seeks civil penalties on behalf of the state, with 65% of penalties going to the state, and does not require class certification.
Related
The information on this page is general and is not legal advice. Contacting the firm does not create an attorney-client relationship. Prior results do not guarantee a similar outcome.