PAGA Claim Notice Requirement Law

The Private Attorney General Act allows an employee to bring an action against an employer to recover civil penalties for violations of the California Labor Code. Cal. Lab. Code § 2699(a). First, however, the employee must give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of the California Labor Code alleged to have been violated, including the facts and theories to support the alleged violation. Cal. Lab. Code § 2699.3(a)(1).


Labor Code 2699.3(a)(1)  and (b)(1) state respectively:

The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.

****

The aggrieved employee or representative shall give notice by online filing with the Division of Occupational Safety and Health and by certified mail to the employer, with a copy to the Labor and Workforce Development Agency, of the specific provisions of Division 5 (commencing with Section 6300) alleged to have been violated, including the facts and theories to support the alleged violation.

Public Policy for Notice Requirement

Section 2699.3(a)(1) was adopted as part of an amendment to PAGA, intended to cure perceived abuses of the Act.

The Senate floor analysis stated “[the amendment] improves [the Act] by allowing the Labor Agency to act first on more serious violations such as wage and hour violations and give employers an opportunity to cure less ‘serious’ violations. The bill protects businesses from shakedown lawsuits, yet ensures that labor laws protecting California’s working men and women are enforced—either through the Labor Agency or through the courts.” Dunlap v. Superior Court, 142 Cal. App. 4th 330.

Legal Conclusion Insufficient for PAGA Notice Requirement

In Alcantar v. Hobart Serv. (2015) 800 F.3d 1047, the Ninth Circuit Court of Appeals held that an attorney’s letter did not comply with PAGA notice requirements, and therefore dismissed plaintiff’s PAGA claims.  According to the court, “the letter in which plaintiff disclosed his allegations against the employer did not contain sufficient facts to comply with the statute’s notice requirements.”

In Alcantar, defendants Hobart and ITW moved for summary judgment a second time, arguing that Alcantar had not complied with PAGA’s notice requirements. The district court agreed.

Alcantar’s letter is a series of legal conclusions:

Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a former employee of ITW Food Equipment Group, LLC aka Hobart Service [**24] (Defendant). Plaintiff contends that Defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include the extra compensation required by California Labor Code section 1194 in the regular rate of pay when computing overtime compensation, thereby failing to pay Plaintiff and those who earned additional compensation for all overtime wages due; (4) failed to provide accurate wage statements to employees as required by California Labor Code section 226; (5) failed to provide reimbursement for work related expenses as required by Labor Code § 2802; and, (6) failed to provide off-duty meal periods and to pay compensation for work without off-duty meal periods to its California employees in violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section as set forth in California Labor Code section 2699.5.

The only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code—that Hobart failed to pay wages for time worked, failed to pay overtime wages for overtime worked, failed to include the extra compensation required by § 1194 in the regular rate of pay when computing [**25] overtime compensation, and so on. This is insufficient.

In Archila v. KFC U.S. Props. (2011) 420 Fed. Appx. 667 , the Ninth Circuit Court held:

Before an employee may bring a PAGA suit, he must “give written notice . . . to the [LWDA] and the employer of the specific provisions of [the California Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.” Cal. Lab. Code § 2699.3(a)(1). Regardless of whether the cover letter to the LWDA is admissible, none of the materials Archila submitted to KFC or the LWDA contain “facts and theories” to support his allegations. The demand letter merely lists several California Labor Code provisions Archila alleges KFC violated and requests that KFC [**5] conduct an investigation. Citing an inapposite case about EEOC complaints, Archila insists the contents of his letter are adequate because we must construe it “with utmost liberality.” See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002). Even if we were to read the cover and demand letters “with utmost liberality,” because neither letter contains any factual allegations whatsoever, they cannot constitute adequate notice for purposes of PAGA. Archila’s PAGA claims therefore cannot proceed.

Right to Amendment

Soto v. Castlerock Farming & Transp., Inc., 2012 U.S. Dist. LEXIS 53109, the court held:

As an alternate theory, Soto relies on Cal. Labor Code §2699.3(a)(2)(C) which states “Notwithstanding any other provision of law, a plaintiff may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part.” Soto stated “nothing in the statute suggests that the PAGA notice must be given within any limitation period.” Doc. 88, Opposition, 11:17-19. That argument has been rejected: “Nor does the PAGA provision providing an automatic procedural right to amend an existing complaint in state court within 60 days of exhausting administrative remedies alter the operation of the statute of limitations.” Moreno v. Autozone, Inc., 2007 U.S. Dist. LEXIS 43873, 2007 WL 1650942, *2 n.2 (N.D. Cal. June 5, 2007). Soto’s interpretation of Section 2699.3(a)(2)(C) would render PAGA’s statute of limitations a nullity. Instead, Section 2699.3(a)(2)(C) should be read in conjunction with Section 2699.3(d) [*21] which states “The periods specified in this section are not counted as part of the time limited for the commencement of the civil action to recover penalties under this part.” The Northern District has interpreted Section 2699.3(a)(2)(C) to, in essence, toll the statute of limitations an additional 60 days after the completion of administrative exhaustion. See Martinez v. Antique & Salvage Liquidators, Inc., 2011 U.S. Dist. LEXIS 12198, 2011 WL 500029, *9 (N.D. Cal. Feb. 8, 2011). That conclusion is sound. Thus, that provision does not help Soto in this case.

PAGA requires that new claim notices, responses, and certain court documents be filed with the Labor and Workforce Development Agency (LWDA). All items being filed with LWDA must be submitted through this website, using the appropriate intake form below. Please read the submission instructions before submitting documents.