Private Attorney's General Act (PAGA)

Protecting Employees from Discrimination, Harassment, and Retaliation

California employers are required to comply with laws governing wages, working hours, meal periods, rest periods, payroll records, expense reimbursement, workplace safety, and other employment conditions.

When an employer violates the Labor Code, the violation may affect more than one employee. It may result from a companywide policy, a payroll system, a uniform classification decision, inadequate staffing, or a practice imposed by managers throughout the workplace. The California Private Attorneys General Act—commonly known as PAGA—allows an eligible employee to pursue civil penalties for Labor Code violations on behalf of the State of California and other employees who experienced the same violations. The Westmoreland Law Firm represents employees in PAGA representative actions and related wage-and-hour litigation. We investigate workplace practices, analyze employment and payroll records, identify systemic violations, and pursue the civil penalties and other relief authorized by California law.

WHAT IS PAGA?

PAGA stands for the Private Attorneys General Act of 2004. PAGA allows an eligible current or former employee to act as a representative of the State of California in enforcing certain Labor Code provisions against a private employer.

A PAGA plaintiff may seek civil penalties for violations committed against the plaintiff and other current or former employees who experienced violations of the same Labor Code provisions.

The employee does not take over the government’s general enforcement authority. Instead, the employee must follow specific statutory notice and filing procedures before pursuing a PAGA action in court. PAGA actions generally apply to private employers. Government employers are not ordinarily subject to PAGA lawsuits.

WHAT IS AN “AGGRIEVED EMPLOYEE”?

An aggrieved employee is generally a person who:

Was employed by the alleged violator; and
Personally experienced the Labor Code violations asserted in the PAGA action during the applicable limitations period.

Under the current PAGA statute, an employee generally must have personally suffered each violation the employee seeks to pursue on behalf of others. For example, an employee seeking penalties for unpaid overtime, missed meal periods, and unreimbursed business expenses generally must have personally experienced each of those alleged violations. Special rules may apply to certain employees represented by qualifying nonprofit legal-aid organizations and to matters governed by earlier versions of PAGA.

WHAT VIOLATIONS MAY SUPPORT A PAGA CLAIM?

PAGA may apply to many violations of the California Labor Code. Common violations include:

Failure to pay minimum wages
Failure to pay overtime
Unpaid off-the-clock work
Failure to provide compliant meal periods
Failure to authorize and permit compliant rest periods
Improper calculation of the regular rate of pay
Failure to pay earned commissions or bonuses
Failure to reimburse necessary business expenses
Unlawful deductions from wages
Misclassification of employees as exempt
Misclassification of employees as independent contractors
Failure to provide accurate itemized wage statements
Failure to maintain required payroll or time records
Failure to timely pay wages during employment
Failure to timely pay final wages
Unlawful tip practices
Failure to comply with applicable paid-sick-leave requirements
Certain workplace health and safety violations
Retaliation for exercising rights protected by the Labor Code

PAGA does not authorize a representative claim for every technical posting, notice, reporting, or filing requirement. The statute contains exclusions and specialized procedures for certain alleged violations. Whether a particular violation supports a PAGA claim requires analysis of the Labor Code provision, the applicable wage order, the employer’s conduct, and the current version of the statute.

PAGA AND UNPAID-WAGE CLAIMS ARE DIFFERENT

A PAGA claim primarily seeks civil penalties on behalf of the State of California. A claim for unpaid wages seeks compensation owed directly to the employee, such as:

Minimum wages
Regular wages
Overtime compensation
Meal-period premium pay
Rest-period premium pay
Commissions
Bonuses
Expense reimbursement
Waiting-time penalties
Wage-statement penalties
Interest

An employee may have both a PAGA claim and separate claims for unpaid wages, statutory damages, restitution, penalties, or retaliation. The claims may arise from the same conduct, but they serve different legal purposes and may provide different remedies.

For example, an employer’s failure to pay overtime may support:

An individual claim to recover the employee’s unpaid overtime;
A class or collective claim when the legal requirements are satisfied; and
A PAGA claim for civil penalties arising from the Labor Code violation.

Pursuing a PAGA claim does not automatically replace an employee’s individual wage claims.

IS A PAGA CASE A CLASS ACTION?

A PAGA representative action is not the same as a class action. In a class action, an employee seeks relief for a defined group of employees and ordinarily must satisfy procedural requirements for class certification. In a PAGA action, the employee acts as a representative of the State of California to pursue civil penalties for Labor Code violations. A PAGA plaintiff is not required to obtain class certification merely to pursue PAGA penalties. A lawsuit may include both class claims and a PAGA claim when the legal requirements for each type of claim are satisfied. The court may limit the scope of a PAGA claim, the evidence presented, or the issues to be tried when necessary to ensure that the action can be effectively managed and tried.

HOW DOES THE PAGA NOTICE PROCESS WORK?

An employee generally cannot immediately file a PAGA lawsuit. Before filing suit, the employee or the employee’s representative must provide written notice to:

The California Labor and Workforce Development Agency; and
The employer.

The notice must generally identify:

The specific Labor Code provisions allegedly violated;
The facts supporting each alleged violation; and
The legal theories supporting the claimed violations.

The notice must be filed through the state’s online PAGA filing system and served on the employer by certified mail. A filing fee generally applies unless a fee waiver is obtained. A vague notice that merely lists statutes without explaining the employer’s conduct may be insufficient. The notice should provide enough factual information to allow the agency and employer to understand the alleged violations. For many Labor Code claims, the employee must wait for the statutory agency-review period before commencing a PAGA lawsuit. If the agency states that it will not investigate—or does not provide timely notice of an investigation—the employee may generally proceed after the applicable waiting period expires. Special procedures apply to certain occupational safety and health violations.

THE EMPLOYER’S OPPORTUNITY TO CURE

Current PAGA law gives employers expanded opportunities to correct certain alleged violations. A legally sufficient cure may require more than changing a written policy. Depending on the violation, the employer may be required to:

Correct the unlawful practice
Bring its policies and practices into compliance
Pay unpaid wages
Pay required interest
Pay statutory liquidated damages when applicable
Correct wage statements
Reimburse expenses
Provide relief to affected employees
Pay reasonable attorney’s fees and costs associated with the cure

An employer’s assertion that it has corrected a violation does not necessarily establish a legally sufficient cure. The employee may dispute whether:

The employer identified every affected employee
The employer used the correct recovery period
The employer accurately calculated unpaid compensation
The employer paid all required interest and damages
The corrected wage statements contain the required information
The employer actually changed the unlawful policy or practice
The cure included all violations identified in the PAGA notice

A valid cure may reduce or eliminate certain PAGA penalties. An incomplete or disputed cure may remain subject to agency or court review.

EARLY EVALUATION OF PAGA CLAIMS

After a PAGA lawsuit is filed, an employer may be permitted to request an early evaluation conference and a temporary stay of the court proceedings. The early evaluation process may address:

Whether the alleged violations occurred
Which violations the employer disputes
Whether the employer intends to cure any violations
Whether a proposed cure is complete and legally sufficient
The estimated penalties at issue
The parties’ supporting evidence
Whether some or all of the claims can be resolved

An employer that proposes a cure may be required to identify the violations it intends to correct and provide evidence showing that the cure was completed. The early evaluation process does not automatically establish that the employer complied with the law or eliminate the employee’s claims.

WHAT CIVIL PENALTIES MAY BE RECOVERED?

The amount of PAGA penalties depends on:

The Labor Code provision violated
Whether that provision establishes its own civil penalty
The number of affected employees
The number and frequency of pay periods involved
Whether the violation was isolated or recurring
Whether the employer previously received notice that its policy was unlawful
Whether the conduct was malicious, fraudulent, or oppressive
Whether the employer took reasonable steps to comply
Whether the employer completed a legally sufficient cure
Whether employees were paid weekly, biweekly, or semimonthly
Whether multiple alleged violations arose from the same conduct

When the underlying Labor Code provision does not establish a different civil penalty, the current statutory framework generally provides a presumptive penalty of $100 per aggrieved employee per pay period. Different penalty amounts may apply in particular circumstances. For example:

Certain isolated, nonrecurring violations may carry a reduced penalty
Certain wage-statement violations may carry reduced penalties
Enhanced penalties may apply following a prior agency or court determination
Enhanced penalties may apply when the employer’s conduct was malicious, fraudulent, or oppressive
Penalties may be substantially reduced when an employer took specified reasonable compliance measures
Penalties may be reduced or eliminated for violations that were properly cured

The court retains discretion when determining the appropriate amount of civil penalties. The court may reduce an award when the maximum amount would be unjust, arbitrary and oppressive, or confiscatory under the circumstances.

HOW ARE PAGA PENALTIES DISTRIBUTED?

For PAGA notices governed by the current statutory allocation:

65 percent of recovered civil penalties is distributed to the California Labor and Workforce Development Agency; and
35 percent is distributed among the aggrieved employees.

Earlier PAGA matters may remain subject to the former allocation of 75 percent to the state and 25 percent to employees.

The portion distributed to employees is generally allocated according to the settlement, judgment, number of applicable pay periods, or another court-approved method. PAGA civil penalties should not be confused with unpaid wages. Employees may have separate rights to recover unpaid compensation through individual, class, collective, or other authorized claims.

CAN THE COURT ORDER THE EMPLOYER TO CHANGE ITS PRACTICES?

In appropriate PAGA actions governed by the current law, a court may award injunctive relief in addition to civil penalties.

Injunctive relief may require an employer to stop or correct an unlawful practice, such as:

Requiring off-the-clock work
Denying legally compliant meal periods
Preventing employees from taking rest periods
Using an unlawful compensation system
Making unlawful deductions
Failing to reimburse necessary expenses
Issuing noncompliant wage statements
Maintaining unlawful timekeeping practices
Misclassifying employees
Retaliating against employees who assert Labor Code rights

The relief available depends on the violation, the evidence, whether the practice remains ongoing, and the authority provided by the applicable Labor Code section.

CAN AN EMPLOYER RETALIATE AGAINST AN EMPLOYEE FOR A PAGA CLAIM?

Employers generally may not retaliate against employees for asserting rights protected by the Labor Code, reporting suspected violations, participating in an investigation, or pursuing authorized legal remedies.

Retaliation may include:

Termination
Demotion
Suspension
Reduction of hours
Unfavorable schedule changes
Denial of promotions
Loss of assignments or opportunities
Increased scrutiny
Unjustified discipline
Threats or intimidation
Harassment
Blacklisting
Immigration-related threats
Pressure to withdraw or abandon a claim

Retaliation can occur before or after a PAGA notice is filed. An employee who experiences retaliation may have separate claims for lost wages, lost benefits, reinstatement, penalties, emotional-distress damages, attorney’s fees, or other relief, depending on the statutes involved. Employees should preserve evidence of any adverse action that occurs after they raise workplace concerns.

WHAT EVIDENCE SHOULD AN EMPLOYEE PRESERVE?

PAGA cases frequently require evidence of both the employee’s personal experience and the employer’s broader policies or practices. Employees should preserve available copies of:

Wage statements
Paychecks and payroll records
Timecards
Work schedules
Meal-period records
Rest-period records
Employment agreements
Arbitration agreements
Offer letters
Employee handbooks
Wage-and-hour policies
Commission and bonus plans
Expense-reimbursement policies
Mileage and expense records
Emails and text messages
Supervisor instructions
Disciplinary notices
Performance evaluations
Termination or resignation documents
Photographs of schedules, notices, or timekeeping systems
Personal calendars and contemporaneous notes
Names and contact information for coworkers or witnesses

An employee may also keep a personal record identifying:

The hours actually worked
Work performed before clocking in or after clocking out
Meal periods that were late, short, interrupted, or missed
Rest periods that were denied or interrupted
Work-related expenses
Instructions to alter or underreport time
Complaints made to management
Responses received from management
Retaliatory conduct

Employees should preserve evidence lawfully and should not take documents containing privileged, confidential, proprietary, medical, or personal information that they are not authorized to possess.

HOW LONG DOES AN EMPLOYEE HAVE TO PURSUE A PAGA CLAIM?

PAGA claims are subject to strict deadlines. The limitations period for PAGA civil penalties is generally shorter than the period that may apply to certain unpaid-wage or unfair-competition claims. PAGA claims are commonly subject to a one-year limitations period, although statutory tolling and procedural rules may affect the calculation. The employee must also complete the required PAGA notice process before filing suit.

Delay can reduce the recoverable period or prevent a claim entirely. It can also result in the loss of:

Timekeeping data
Payroll records
Electronic communications
Surveillance footage
Work schedules
Witness recollections
Contact information for former employees
Evidence concerning company policies

An internal complaint, payroll investigation, promise of future payment, or ongoing discussion with the employer does not necessarily extend the PAGA deadline.

DOES AN EMPLOYEE HAVE TO STILL WORK FOR THE EMPLOYER?

No. A qualifying former employee may pursue a PAGA claim when the employee personally suffered the alleged violations during the applicable limitations period and satisfies the other statutory requirements. The employee’s resignation, discharge, layoff, or acceptance of another job does not automatically eliminate a PAGA claim. However, the timing of the employment, the date of the violations, and the date of the PAGA notice remain important.

DOES AN EMPLOYEE NEED TO IDENTIFY EVERY AFFECTED COWORKER?

An employee does not ordinarily need to know the name of every affected employee before initiating the PAGA process.

The employer may possess relevant information concerning:

Employee names and contact information
Job classifications
Work locations
Pay periods
Time records
Wage statements
Payroll data
Policies and procedures
Supervisory practices

The scope of the affected group may be determined through investigation, informal exchange of information, agency proceedings, or formal discovery after litigation begins. The employee should nevertheless provide counsel with all available information concerning the locations, departments, positions, supervisors, and practices involved.

CAN ONE EMPLOYEE BRING A PAGA CLAIM?

Potentially. A single qualifying employee may initiate a representative PAGA action when the statutory standing, notice, and procedural requirements are satisfied. The employee does not necessarily need several coworkers to agree to participate before providing a PAGA notice. Evidence that other employees experienced the same violation may strengthen the representative allegations, but the employer’s records and policies may also establish the scope of the practice.

DOES AN ARBITRATION AGREEMENT PREVENT A PAGA CLAIM?

Not necessarily. An arbitration agreement may affect where some issues are resolved, the sequence of proceedings, or whether an employee’s individual allegations must first be arbitrated. It does not automatically establish that every representative PAGA issue must be dismissed. The effect of an arbitration agreement depends on:

The language of the agreement
The employee’s signature or assent
The circumstances under which the agreement was presented
Whether the agreement is enforceable
The claims asserted
Current California and federal arbitration law
Whether any provision is unconscionable or unlawful

Employees should not assume that an arbitration agreement eliminates all PAGA rights.

CAN AN EMPLOYER SETTLE A PAGA CLAIM PRIVATELY?

A settlement of a filed PAGA action requires court review and approval. The proposed settlement must also be submitted to the Labor and Workforce Development Agency when it is submitted to the court. The court may evaluate:

The strength of the alleged violations
The estimated maximum penalties
The employer’s defenses
The number of affected employees and pay periods
The value of any cure
The risk, expense, and delay of continued litigation
The proposed distribution to the state and employees
Requested attorney’s fees and litigation costs
Whether the settlement advances PAGA’s enforcement and deterrence purposes

A private agreement between an employer and employee does not necessarily release the state’s PAGA claim without the procedures and approval required by law.

WHAT HAPPENS IF THE EMPLOYER CORRECTS THE PRACTICE?

Correcting an unlawful practice may stop future violations, but it does not automatically erase earlier violations. Depending on the circumstances, a correction may:

Reduce future exposure
Support a statutory penalty reduction
Form part of a legally sufficient cure
Require payment to affected employees
Require corrected wage statements
Require interest, liquidated damages, fees, or costs
Become part of an early evaluation or settlement process

The effectiveness of the correction depends on whether the employer fully addressed the violation and made affected employees whole as required by law.

HOW THE WESTMORELAND LAW FIRM CAN HELP

PAGA cases require detailed knowledge of California wage-and-hour law, statutory notice requirements, payroll systems, civil penalties, representative litigation, and the recent amendments to the PAGA statute.

The Westmoreland Law Firm can:

Evaluate whether the employee qualifies as an aggrieved employee
Identify the Labor Code provisions violated
Determine whether the employee personally experienced each alleged violation
Analyze timekeeping, payroll, and wage-statement records
Investigate companywide policies and practices
Evaluate exempt and independent-contractor classifications
Identify affected positions, departments, locations, and pay periods
Prepare and submit a factually detailed PAGA notice
Comply with agency filing and service requirements
Evaluate an employer’s proposed cure
Challenge incomplete or legally insufficient cure efforts
Calculate potential civil penalties
Pursue separate unpaid-wage and retaliation claims when appropriate
Obtain employment, payroll, policy, and electronic records
Interview employees and other witnesses
Address arbitration issues
Participate in early evaluation, mediation, and settlement proceedings
Litigate the PAGA action through trial when necessary
Submit any proposed resolution for required court review and approval

PAGA claims can be procedurally demanding. A defective notice, missed deadline, incomplete factual theory, or failure to identify the proper Labor Code provisions may limit or defeat an otherwise valid claim.

This page provides general information concerning California law and is not legal advice. Reading this page does not create an attorney-client relationship. PAGA standing, notice requirements, cure procedures, limitations periods, penalties, and available remedies depend on the date of the PAGA notice, the violations alleged, the employer, and the specific circumstances of each matter.

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