Private Attorney General Act PAGA Law Defense Lawyer – California

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Public Policy. The California legislature declares:

(a) Adequate financing of essential labor law enforcement functions is necessary to achieve maximum compliance with state labor laws in the underground economy and to ensure an effective disincentive for employers to engage in unlawful and anticompetitive business practices.

(b) Although innovative labor law education programs and self–policing efforts by industry watchdog groups may have some success in educating some employers about their obligations under state labor laws, in other cases the only meaningful deterrent to unlawful conduct is the vigorous assessment and collection of civil penalties as provided in the Labor Code.

(c) Staffing levels for state labor law enforcement agencies have, in general, declined over the last decade and are likely to fail to keep up with the growth of the labor market in the future.

(d) It is therefore in the public interest to provide that civil penalties for violations of the Labor Code may also be assessed and collected by aggrieved employees acting as private attorneys general, while also ensuring that state labor law enforcement agencies’ enforcement actions have primacy over any private enforcement efforts undertaken pursuant to this act.

California Private Attorney General Law Statute Labor Code Section § 2698 2699 2699.3 2699.5 2699.6


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Statute of Limitations

Because the one-year statute of limitations set out in CCP § 340(a) applied to requests for civil penalties pursuant to the Private Attorney General Act of 2004 (PAGA), Lab C §§ 2698 et seq., a former employee’s claims against his former employer were barred; he could not go forward in a representative capacity with his PAGA claims after the one-year statute of limitations under CCP § 340(a) had run on his own claims. Thomas v. Home Depot USA Inc. (N.D. Cal. Sept. 26, 2007), 527 F. Supp. 2d 1003.

Former hourly employees’ claim under the Private Attorneys General Act (PAGA), Lab C §§ 2698 et seq., was not time-barred where they filed their original complaint within one year and 33 days of the alleged violation, and although the original complaint did not include a PAGA claim, the complaint was amended to add the claim within the 60-day window provided in Lab C § 2699.3(a)(2)(C). Martinez v. Antique & Salvage Liquidators, Inc. (N.D. Cal. Feb. 8, 2011), 2011 U.S. Dist. LEXIS 12198, modified, (N.D. Cal. Feb. 25, 2011).


Although tolling did not add enough days to make a California Private Attorneys General Act claim timely, the claim was not time-barred because it was filed within 60 days of the expiration of the limitations period and thus related back to the filing of the original complaint. Robles v. Schneider Nat’l Carriers, Inc. (C.D. Cal. Aug. 15, 2017), 2017 U.S. Dist. LEXIS 132065.



Constitutionality

Representative action brought by an aggrieved employee under the Private Attorneys General Act of 2004, Lab C §§ 2698 et seq., does not give rise to due process concerns that, unless the Act is construed as requiring representative actions under the Act to be brought as class actions, defendants in those actions will be subjected to the unfairness flowing from one-way intervention, because the judgment in such an action is binding not only on the named employee plaintiff, but also on government agencies and any aggrieved employee not a party to the proceeding. Because an action under the Act is designed to protect the public, and the potential impact on remedies other than civil penalties is ancillary to the action’s primary objective, the one-way operation of collateral estoppel in this limited situation does not violate the employer’s right to due process of law. Arias v. Superior Court (Cal. June 29, 2009), 46 Cal. 4th 969, 95 Cal. Rptr. 3d 588, 209 P.3d 923, 2009 Cal. LEXIS 6017.


Aggrieved Employee Requirement

Requirements of the Labor Code Private Attorneys General Act of 2004, Lab C §§ 2698 et seq., including its administrative prerequisites to filing suit in Lab C § 2699.3(a), are triggered when an aggrieved employee seeks civil penalties for violation of a Labor Code provision that previously provided for recovery of a civil penalty by the Labor Commissioner. Dunlap v. Superior Court (Cal. App. 2d Dist. July 27, 2006), 142 Cal. App. 4th 330.


Employee did not need to prove that she suffered injury, as required under Lab C § 226(e), to recover civil penalties under the Private Attorney General Act where she had proven a violation of Lab C § 226(a), and Lab C § 2699.5 specifically listed § 226(a), but not § 226(e). McKenzie v. Fed. Express Corp. (C.D. Cal. Apr. 14, 2011), 765 F. Supp. 2d 1222.


By accepting a settlement and dismissing his individual claims against an employer defendant with prejudice, plaintiff no longer met the definition of “aggrieved employee” under the Labor Code Private Attorneys General Act of 2004. Therefore, plaintiff did not have standing to maintain an action under PAGA against defendant, and defendant’s motion to dismiss was properly granted. Kim v. Reins Internat. California, Inc. (Cal. App. 2d Dist. Dec. 29, 2017),  18 Cal. App. 5th 1052 (Cal. Mar. 12, 2020), 259 Cal. Rptr. 3d 769, 459 P.3d 1123, 9 Cal. 5th 73.


Where an employee has brought both individual claims and a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) in a single lawsuit, and then settles and dismisses the individual employment causes of action with prejudice, the employee is no longer an “aggrieved employee” as that term is defined in the PAGA, and therefore that particular plaintiff no longer maintains standing under PAGA. Kim v. Reins Internat. California, Inc. (Cal. App. 2d Dist. Dec. 29, 2017),  18 Cal. App. 5th 1052, (Cal. Mar. 12, 2020), 9 Cal. 5th 73.

Union No Standing. Unions lacked standing under the Private Attorneys General Act of 2004, Lab C §§ 2698 et seq., in a suit alleging labor law violations because they were not aggrieved employees under Lab C § 2699; the federal doctrine of associational standing does not apply to such suits, the cause of action is not assignable, and the provision of Lab C § 2699.3(a), allowing a representative to give written notice of violations, does not relate to standing to bring an action. Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (Cal. June 29, 2009), 46 Cal. 4th 993.


Assignment of Claim

Individual’s statutory right to sue in a representative capacity, conferred under the California Labor Code Private Attorneys General Act of 2004 (PAGA), Lab C § 2699, and under the unfair competition law, B & P C § 17203, may not be assigned to a third party. Because the purported assignor (the employee), although authorized by B & P C § 17203 or PAGA to bring an action on behalf of others, has no ownership interest in the causes of action owned by others, the employee necessarily has no right to transfer those causes of action to a third party. Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (Cal. App. 2d Dist. Feb. 28, 2007), 148 Cal. App. 4th 39, 55.



Exhaustion of Administrative Remedy

In accordance with Lab C § 2699(a), plaintiffs seeking civil penalties recoverable by the state in suits for violations of any California Labor Code provision specified in Lab C § 2699.5, must plead compliance with the administrative procedures of Lab C § 2699.3(a). Caliber Bodyworks, Inc. v. Superior Court (Cal. App. 2d Dist. Nov. 23, 2005), 134 Cal. App. 4th 365, 36 Cal. Rptr. 3d 31, 2005 Cal. App. LEXIS 1824, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 252 Cal. Rptr. 3d 228, 448 P.3d 239, 8 Cal. 5th 175, 2019 Cal. LEXIS 6629.


Plaintiff’s claim that defendant violated California Labor Code by failing to maintain employee time records failed as a matter of law because although the California Private Attorney General Act (PAGA) created a private right of action for that violation, he had to exhaust administrative remedies as a prerequisite to bringing suit. Cleveland v. Groceryworks.com, LLC (N.D. Cal. Aug. 4, 2016), 200 F. Supp. 3d 924, 2016 U.S. Dist. LEXIS 103672.


Because workers alleging labor law violations failed to plead compliance with the pre-filing notice and exhaustion requirements in Lab C § 2699.3(a), they were not entitled to pursue causes of action alleging violations of provisions listed in Lab C § 2699.5, and seeking civil penalties under Lab C § 2699. Caliber Bodyworks, Inc. v. Superior Court (Cal. App. 2d Dist. Nov. 23, 2005), 134 Cal. App. 4th 365, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 8 Cal. 5th 175.


PAGA Notice Letters Requirement

Employee failed to exhaust administrative remedies as to a claim that his premium wage rate for missed meal and rest periods was incorrectly calculated; his notice of validation alleged only that he was denied meal and rest breaks and did not allege that his premium pay was incorrectly calculated. Studley v. Alliance Healthcare Servs. (C.D. Cal. July 26, 2012), 2012 U.S. Dist. LEXIS 190964.


Transportation services provider’s claim that the international truck drivers’ notice to the Labor and Workforce Development Agency was insufficient was rejected where although the body of the letter one driver sent did not contain all of the specific statutory provisions under which the drivers now challenged the reserve account class, the letter stated that one of the violations the drivers sought to allege was taking deductions from employee wages for the business expenses of the employer in violation of Lab C §§ 221-223, including legal fees and wire transfer costs, the original complaint was attached to the notice, and the complaint did reference Lab C §§ 401-410. Jasper v. C.R. Eng., Inc. (C.D. Cal. Aug. 30, 2012), 2012 U.S. Dist. LEXIS 186607.

Employees’ claim as private attorneys general to enforce wage laws against an employer was precluded by the employees’ failure to exhaust administrative remedies, since notice letters to the state labor agency which merely recited statutory wage requirements were insufficient to provide the agency with specific information, facts, or theories regarding the potential violations. Amey v. Cinemark USA Inc. (N.D. Cal. May 13, 2015), 2015 U.S. Dist. LEXIS 63524, rev’d, (9th Cir. Cal. Dec. 7, 2017), 705 Fed. Appx. 644, 2017 U.S. App. LEXIS 24764.

An employee was not entitled to certification for interlocutory appeal from a motion for partial summary judgment on civil penalties against her employer because there were no substantial grounds for a difference of opinion on her issues; although there was disagreement regarding the standard to use when determining whether a PAGA notice letter contains sufficient facts and theories, the employee’s letter gave no notice of her theory, which was not sufficient to exhaust under this section. Holak v. K Mart Corp. (E.D. Cal. Aug. 11, 2015), 2015 U.S. Dist. LEXIS 105441.


District court properly granted summary judgment in favor of the employer on plaintiff’s Private Attorney General Act claim because the letter in which plaintiff disclosed his allegations against the employer did not contain sufficient facts to comply with the statute’s notice requirements. Alcantar v. Hobart Serv. (9th Cir. Cal. Sept. 3, 2015), 800 F.3d 1047, 2015 U.S. App. LEXIS 15687.



Arbitration

Employer’s motion to compel arbitration of an employee’s claim under the California Private Attorneys General Act (PAGA) was denied where judicial precedent invalidating California case law holding that class action waivers contained in certain types of consumer contracts were unconscionable should not be construed as an indication that the Federal Arbitration Act preempted the California rule that refused to recognize waivers of a plaintiff’s tight to serve as a PAGA representative. Plows v. Rockwell Collins, Inc. (C.D. Cal. Aug. 9, 2011), 812 F. Supp. 2d 1063, 2011 U.S. Dist. LEXIS 88781.


In a case in which plaintiff filed a single-count representative action under the Private Attorney General Act (PAGA), the trial court properly denied defendant employer’s motion to compel arbitration. The dispute did not involve an individual claim by plaintiff regarding Labor Code violations but rather an action brought for civil penalties under PAGA for violating the Labor Code. Hernandez v. Ross Stores, Inc. (Cal. App. 4th Dist. Dec. 7, 2016), 7 Cal. App. 5th 171.

Plaintiff’s claims against defendant under the Labor Code for overtime, meal, and rest breaks, and violation of record keeping provisions arose under Wage Order 16 and thus were within a collective bargaining agreement’s provision compelling arbitration. However, plaintiff’s causes of action for timely payments upon separation of employment and his unfair competition claim based on that statutory violation did not fall within the wage order, and the trial court erred in compelling arbitration of those claims. Cortez v. Doty Bros. Equipment Co. (Cal. App. 2d Dist. Aug. 15, 2017), 15 Cal. App. 5th 1.


In a case in which plaintiff sued defendant employer under the Private Attorneys General Act of 2004, the trial court properly granted plaintiff’s motion for a preliminary injunction to enjoin arbitration. The trial court did not abuse its discretion when it found that plaintiff demonstrated a likelihood he would prevail on the issue of whether his claim was arbitrable. Brooks v. AmeriHome Mortgage Co., LLC (Cal. App. 2d Dist. Mar. 16, 2020), 47 Cal. App. 5th 624.


Denying a request to sever and stay nonarbitrable claims was not error because a Private Attorneys General Act claim was representative and did not belong to the employee individually; thus, it could not be split. Jarboe v. Hanlees Auto Group (Cal. App. 1st Dist. May 8, 2020), 49 Cal. App. 5th 830.


Plaintiff was entitled to pursue her claim under the Labor Code Private Attorneys General Act of 2004, and because that claim was not arbitrable, the entire dispute had to remain in court. Accordingly, the appellate court issued a writ of mandate directing the trial court to vacate its order granting defendants’ motion to compel arbitration of plaintiff’s individual claims and to enter a new order denying the motion. Kec v. Superior Court (Cal. App. 4th Dist. June 19, 2020),  51 Cal. App. 5th 972.

 
Arbitration Agreement

Question whether an arbitration agreement permits class and/or representative arbitration is a gateway issue, and is thus reserved for judicial determination unless the parties clearly and unmistakably provide otherwise. Accordingly, in a case in which a trial court had granted an employer’s motion to compel arbitration of a former employee’s claims alleging California Labor Code violations, the court, rather than the arbitrator, had to determine whether the parties’ arbitration agreement contemplated class and/or representative arbitration and whether the employee’s representative California Private Attorney General Act of 2004 claim could be arbitrated, or rather, whether that claim should be bifurcated. Garden Fresh Restaurant Corp. v. Superior Court (Cal. App. 4th Dist. Nov. 17, 2014), 231 Cal. App. 4th 678.


In a case in which an employee served an amended class arbitration demand adding a representative claim under the Labor Code Private Attorneys General Act of 2004, the trial court properly determined the arbitration agreement did not authorize class arbitration of the employee’s wage and hour claims. The agreement’s broad terms requiring the parties to submit all claims, disputes, and controversies to arbitration, with only a few limited and inapplicable exceptions, fell short of demonstrating a clear agreement to arbitrate class claims. Network Capital Funding Corp. v. Papke (Cal. App. 4th Dist. Oct. 9, 2014), 230 Cal. App. 4th 503, review granted, depublished, (Cal. Jan. 14, 2015), 182 Cal. Rptr. 3d 274, transferred, (Cal. Sept. 21, 2016), 208 Cal. Rptr. 3d 282.


Because employees acted as individuals when they entered into arbitration agreements and were not agents of the state before they met the statutory requirements for commencing a Private Attorneys General Act (PAGA) action, their waivers of representative actions did not bind the California Labor and Workforce Development Agency, which is the real party in interest in a PAGA action. As a nonsignatory, the agency was not bound to arbitrate even the question of arbitrability. Bautista v. Fantasy Activewear, Inc. (Cal. App. 2d Dist. June 25, 2020), 52 Cal. App. 5th 650.


In a case in which plaintiff, a former employee, alleged a single cause of action against defendant under the Private Attorneys General Act of 2004, the trial court did not err by denying defendant’s motion to compel arbitration. The state, which was the real party in interest, was not bound by plaintiff’s predispute agreement to arbitrate. Collie v. The Icee Co. (Cal. App. 4th Dist. July 20, 2020), 52 Cal. App. 5th 477.

Pleading

Employer was entitled to judgment on the pleadings in an employee’s action alleging violation of Lab C § 450 arising from the employer’s requirement that the employee purchase a knife set to use in selling knives because there was no implied private right of action under § 450; however, the employee was permitted to amend her claim under the California Private Attorneys General Act (PAGA), Lab C §§ 2698 et seq., to include allegations that she had sought permission from the appropriate agency to prosecute the PAGA claim based on the § 450 violation. Harris v. Vector Mktg. Corp. (N.D. Cal. May 20, 2010), 2010 U.S. Dist. LEXIS 57814.


Where employees’ claims under the California Private Attorney General Act were dismissed for failure to comply with the class action pleading requirements of Fed. R. Civ. P. 23, reconsideration was not warranted, because the United States Court of Appeals for the Ninth Circuit’s Baumann case did not represent an intervening change in controlling law. Halliwell v. A-T Solutions (S.D. Cal. Sept. 10, 2014), 2014 U.S. Dist. LEXIS 126919.


Because workers alleging labor law violations failed to plead compliance with the pre-filing notice and exhaustion requirements in Lab C § 2699.3(a), they were not entitled to pursue causes of action alleging violations of provisions listed in Lab C § 2699.5, and seeking civil penalties under Lab C § 2699. Caliber Bodyworks, Inc. v. Superior Court (Cal. App. 2d Dist. Nov. 23, 2005), 134 Cal. App. 4th 365, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019),  8 Cal. 5th 175.

In accordance with Lab C § 2699(a), plaintiffs seeking civil penalties recoverable by the state in suits for violations of any California Labor Code provision specified in Lab C § 2699.5, must plead compliance with the administrative procedures of Lab C § 2699.3(a). Caliber Bodyworks, Inc. v. Superior Court (Cal. App. 2d Dist. Nov. 23, 2005), 134 Cal. App. 4th 365, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 448 P.3d 239, 8 Cal. 5th 175.

Employer’s Timekeeping

Employer established a triable issue as to whether its timekeeping policy of rounded punch in/out times to the nearest tenth of an hour was fair and neutral because its expert report concluded that the rounding rule was unbiased, most employees were fully compensated, and the majority of employees were paid for more time than their actual working time. Summary adjudication should not have been granted on the employer’s affirmative defense, in a wage and hour class dispute under B & P C § 17200, and Lab C §§ 2698 et seq. See’s See’s Candy Shops, Inc. v. Superior Court (Cal. App. 4th Dist. Oct. 29, 2012), 210 Cal. App. 4th 889.

Any error in granting summary adjudication on private attorney general claims was not prejudicial because a challenge to the employer’s timekeeping policies lacked merit and the employee’s interrogatory responses lacked information to support other factual theories. Silva v. See’s Candy Shops, Inc. (Cal. App. 4th Dist. Dec. 9, 2016),  7 Cal. App. 5th 235.


Payroll system that rounded employee time up or down to the nearest quarter hour complied with California law, considering federal authorities as persuasive; the rounding system was neutral both on its face and in practice, resulting in a net surplus of compensated hours and a net economic benefit to employees when viewed as a whole. Evidence that a bare majority of employees at one facility lost minor sums during a discrete period did not create an issue of fact as to the system’s validity. AHMC Healthcare, Inc. v. Superior Court (Cal. App. 2d Dist. June 25, 2018), 24 Cal. App. 5th 1014.



Wage and hour exclusion in an employment practices liability insurance policy did not apply to a reimbursement claim, which the insurer had a duty to defend because it likely was covered as an employment-related workplace tort. The insurer also had a duty to defend derivative claims based in part on the reimbursement claim, including a claim for recovery of civil penalties under a private attorney general theory. Southern California Pizza Co., LLC v. Certain Underwriters at Lloyd’s, London etc. (Cal. App. 4th Dist. Aug. 27, 2019), 40 Cal. App. 5th 140.



Procedure

In an action by a former employee against her former employer for claimed wage and hour law violations, another plaintiff’s motion for leave to amend was granted pursuant to Fed. R. Civ. P. 15(a) to add remedies under California’s Private Attorneys’ General Act (PAGA); a stay order was not intended to prejudice plaintiffs’ ability to timely assert (as opposed to prosecute) legal claims and remedies that they might have had relating to meal and rest period violations. Further, the district court declined to interpret case law as establishing a blanket prohibition on the serving of notice relating to PAGA remedies after an action was commenced; such an interpretation was difficult to reconcile with the finding that plaintiffs could subsequently follow the notice procedures and later request leave to amend, and the statute of limitations were a not a clear-cut bar to plaintiffs’ attempt to recover PAGA remedies. Moreno v. Autozone, Inc. (N.D. Cal. Apr. 6, 2007), 2007 U.S. Dist. LEXIS 29432.


In a former employee’s suit asserting state law claims of unfair competition, failure to pay overtime, failure to provide accurate wage statements, failure to make timely wage payments, and a claim under California’s Private Attorney General Act (PAGA), Lab C §§ 2698 et seq., where the case was removed on basis of diversity jurisdiction, the entire amount of penalties under PAGA attributable to the employee’s claims counted towards the amount in controversy for purposes of a remand motion. Patel v. Nike Retail Servs. (N.D. Cal. July 21, 2014), 58 F. Supp. 3d 1032, 2014 U.S. Dist. LEXIS 98918.

Employee’s action brought under this section was on behalf of the state, which was the real party in interest and was not bound by the employee’s predispute agreement to arbitrate; thus, the employer could not rely on that agreement to compel arbitration. Even if the employee’s complaint included other claims, the employer first had to challenge the pleadings before seeking arbitration on any such matters. Betancourt v. Prudential Overall Supply (Cal. App. 4th Dist. Mar. 7, 2017), 9 Cal. App. 5th 439, 2017 Cal. App. LEXIS 191, cert. denied, (U.S. Dec. 11, 2017), 138 S. Ct. 556.


Employee’s motion to intervene in another employee’s Private Attorneys General Act action was untimely because it was not filed until after a settlement, entry of judgment for civil penalties, and the employer’s payment of the judgment. Standing to challenge the judgment as a nonparty was lacking because the Labor and Workforce Development Agency had accepted the benefits of the judgment as the real party in interest, and res judicata barred a subsequent action. Starks v. Vortex Indus., Inc. (Cal. App. 2d Dist. Aug. 25, 2020), 53 Cal. App. 5th 1113.

Discovery

Nothing in the California Labor Code Private Attorneys General Act of 2004 (PAGA) suggests a private plaintiff standing in as a proxy for the California Division of Labor Standards Enforcement is entitled to the same access to all places of labor or unlimited information upon pain of criminal conviction as the labor commissioner and his or her deputies and agents, but, to the contrary, the PAGA states only that a private individual may bring a civil action to enforce labor laws. Discovery in a civil action is governed by the code of civil procedure, and absent any express direction from the Legislature to the contrary, discovery in a civil action brought under the PAGA is subject to the same rules as discovery in civil actions generally. Williams v. Superior Court (Cal. App. 2d Dist. May 15, 2015), 236 Cal. App. 4th 1151.

In an action brought under the Private Attorneys General Act of 2004, plaintiff’s interrogatory in which he requested contact information for fellow California employees sought information within, not exceeding, the legitimate scope of discovery. Defendant made no showing of the burden disclosure would impose, and the statutory scheme imposes no good cause requirement for seeking information by interrogatory. Williams v. Superior Court (Cal. July 13, 2017), 3 Cal. 5th 531.



Appeal

That portion of the trial court’s order granting defendant’s motion to compel arbitration of plaintiff’s individual claims was not appealable, and the remainder of the trial court’s order denying defendant’s request to dismiss representative claims under the Labor Code Private Attorneys General Act of 2004, Lab C §§ 2698 et seq., was not a final judgment and, therefore, also was not appealable. Therefore, plaintiff’s motion to dismiss defendant’s appeal was granted. Reyes v. Macy’s, Inc. (Cal. App. 1st Dist. Dec. 21, 2011), 202 Cal. App. 4th 1119.

Interlocutory appeal could be taken from an order compelling arbitration of an employee’s individual Private Attorneys General Act (PAGA) claim because a mandatory waiver of class or collective arbitration meant no employees could assert a representative PAGA claim, which made the order effectively a final judgment for nonparty employees’ PAGA claims, and the low damages created a risk no final judgment would be entered. That the class claims had been dismissed without prejudice did not matter. Miranda v. Anderson Enterprises, Inc. (Cal. App. 1st Dist. Oct. 15, 2015), 241 Cal. App. 4th 196.

Order that compelled arbitration of an individual wage payment claim, dismissed class claims, and bifurcated and stayed a representative Private Attorneys General Act claim pending the completion of arbitration was not appealable under the death knell doctrine because the order did not entirely terminate the claims of the putative class members, did not have the legal effect of a final judgment, and left the employee with sufficient incentive to proceed. Young v. RemX, Inc. (Cal. App. 1st Dist. July 26, 2016), 2 Cal. App. 5th 630.

Death knell exception to the one final judgment rule does not apply when a claim under the Private Attorneys General Act of 2004, Lab C §§ 2698 et seq., remains pending in the trial court following termination of the class claims. Cortez v. Doty Bros. Equipment Co. (Cal. App. 2d Dist. Aug. 15, 2017), 222 Cal. Rptr. 3d 649, 15 Cal. App. 5th 1, modified, (Cal. App. 2d Dist. Sept. 6, 2017).


Order denying class certification in two employees’ action against their former employer was nonappealable because the employees’ California Labor Code Private Attorneys General Act of 2004 (PAGA) claims remained in the trial court and the death knell doctrine did not apply; all of the employees’ causes of action under the labor code were for sections listed in Lab C § 2699.5, and, given the potential for recovery of significant civil penalties if the PAGA claims were successful, as well as attorney fees and costs, the employees had ample financial incentive to pursue the remaining representative claims under the PAGA and, thereafter, pursue their appeal from the trial court’s order denying class certification. Munoz v. Chipotle Mexican Grill, Inc. (Cal. App. 2d Dist. June 30, 2015), 238 Cal. App. 4th 291.



Claim Preclusion

Claim preclusion barred a complaint for civil penalties under the Private Attorneys General Act (PAGA), based on alleged meal and rest break violations, because the employee’s decision to opt out of a class settlement did not allow the employee to relitigate a claim for civil penalties resolved by that settlement. PAGA claims, which function as a substitute for a law enforcement action, are binding on all nonparty employees who would be bound by a judgment in an action brought by the government. Robinson v. Southern Counties Oil Co. (Cal. App. 1st Dist. Aug. 13, 2020), 267 Cal. Rptr. 3d 633, 53 Cal. App. 5th 476.


Class action brought under the Labor Code Private Attorneys General Act was barred by res judicata because it asserted the same claims as a prior unfair competition suit that was settled, although the prior complaint did not allege compliance with act prerequisites in Lab C § 2699.3(a); moreover, privity among plaintiffs existed because suits under the act are brought by aggrieved employees as specified in Lab C § 2699(a), and not by the state. Deleon v. Verizon Wireless (Cal. App. 2d Dist. Dec. 29, 2008), 170 Cal. App. 4th 519, 88 Cal. Rptr. 3d 29, 2008 Cal. App. LEXIS 2530, review granted, depublished, (Cal. May 13, 2009),  208 P.3d 78, 2009 Cal. LEXIS 4726.

After a wage and hour action seeking statutory penalties resulted in a settlement by which class members released all claims for alleged violations that could have been raised, res judicata barred a suit against the same employer by a member of the prior class seeking civil penalties under Lab C §§ 2699, 2699.3(a), 2699.5. Villacres v. ABM Industries Inc. (Cal. App. 2d Dist. Oct. 22, 2010), 189 Cal. App. 4th 562.

Employee Seating

Employee could state a cause of action against her employer for civil penalties under Lab C § 2699 based on the employer’s failure to comply with the suitable seating requirement set forth in Wage Order No. 7-2001, subd 14 (8 Cal Code Reg § 11070(14)). Bright v. 99¢ Only Stores (Cal. App. 2d Dist. Nov. 12, 2010), 189 Cal. App. 4th 1472.


Trial court erred in decertifying a class action that sought penalties based on an employer’s alleged failure to provide seats to cashiers; in finding that individual issues would predominate because cashiers at different stores had a variety of tasks, the trial court improperly reached the merits. Whether the employer had a policy requiring cashiers to stand, and whether the nature of check-out work would reasonably permit the use of seats, were questions subject to common proof. Hall v. Rite Aid Corp. (Cal. App. 4th Dist. May 2, 2014), 226 Cal. App. 4th 278.


Lab C § 1198 renders unlawful violations of the suitable seating provision of Wage Order No. 7-2001, subd 14 (8 Cal Code Reg § 11070(14)). Bright v. 99¢ Only Stores (Cal. App. 2d Dist. Nov. 12, 2010), 189 Cal. App. 4th 1472.


Default remedy stated in Lab C § 2699(f), encompasses violations of Lab C § 1198, based on the seating requirement in Wage Order 7-2001 (Cal. Code Regs., tit. 8, § 11070). Therefore, employees of a chain retailer stated a claim by alleging that the employer had not provided seating for its employees, despite ample space. Home Depot U.S.A., Inc. v. Superior Court (Cal. App. 2d Dist. Dec. 22, 2010), 191 Cal. App. 4th 210.


Lab C § 2699(f), by its terms, allows for a civil penalty for violations of Lab C § 1198 based on failure to comply with the suitable seating requirement of Wage Order No. 7-2001, subd 14 ( Cal. Code Regs., tit. 8, § 11070, subd 14). Bright v. 99¢ Only Stores (Cal. App. 2d Dist. Nov. 12, 2010), 189 Cal. App. 4th 1472.

Relation to Fed. R. Civ. P. 23

Fed. R. Civ. P. 23 causes a “direct collision” with California’s Private Attorney Generals Act (“PAGA”) because Rule 23 would prohibit the maintenance of a class action in circumstances where PAGA would permit one; Rule 23 had to be applied to plaintiffs’ PAGA claims. Medlock v. Taco Bell Corp. (E.D. Cal. Aug. 29, 2014), 2014 U.S. Dist. LEXIS 121403.


Class action requirements need not be met when an employee’s representative action against an employer is seeking civil penalties under the Private Attorneys General Act of 2004, Lab C §§ 2698 et seq. Accordingly, in a case in which an employee sought, among other things, civil penalties under the Act for himself and other employees of his former employer, a court of appeal did not err in holding that the representative claims under the Act were not subject to class action requirements and should not have been stricken by a trial court. Arias v. Superior Court (Cal. June 29, 2009), 46 Cal. 4th 969, 95 Cal. Rptr. 3d 588, 209 P.3d 923, 2009 Cal. LEXIS 6017.


Although the employers argued that the employee’s allegations under the California Private Attorney General Act (PAGA), Lab C §§ 2698 et seq., should have been stricken for failure to satisfy the requirements of Fed. R. Civ. P. 23, the court found that the employers’ motion to strike the employee’s PAGA allegations should have been denied because although the employee’s “aggrieved employees” description may have been overly broad, if the employee could prove the employers violated the PAGA with respect to all the employees described in the complaint as “aggrieved employees,” the employee would be able to argue that civil penalties were appropriate under the PAGA, and if the employee could not prove such violations, no penalties would be assessed under the PAGA. Hibbs-Rines v. Seagate Techs., LLC (N.D. Cal. Mar. 2, 2009), 2009 U.S. Dist. LEXIS 19283.


Fundraising program developer was granted judgment on the pleadings as to a claim for civil penalties under California’s Private Attorney General’s Act, Lab C §§ 2698 et seq., where the former employee could not meet the requirements of Fed. R. Civ. P. 23. Fields v. QSP, Inc. (C.D. Cal. June 4, 2012), 2012 U.S. Dist. LEXIS 78001.



Since the Private Attorney General Act is a law enforcement action, and not a class action, there is no conflict with Fed. R. Civ. P. 23. Cardenas v. McLane Foodservice, Inc. (C.D. Cal. Jan. 31, 2011), 2011 U.S. Dist. LEXIS 13126.


In light of their distinct purposes, private attorneys general claims need not be certified to proceed on a representational basis because those claims are not class actions. Pedroza v. PetSmart, Inc. (C.D. Cal. Jan. 28, 2013), 2013 U.S. Dist. LEXIS 53794.


Plaintiff does not need to plead the class certification requirements of Fed. R. Civ. P. 23 in order to proceed on his representative Cali- fornia Private Attorneys General Act claims because PAGA is more in the nature of a qui tam action, and PAGA plaintiffs do not assert the rights of third party employees, but instead represent the interests of the state labor law enforcement agency. Achal v. Gate Gourmet, Inc. (N.D. Cal. July 14, 2015), 114 F. Supp. 3d 781, 2015 U.S. Dist. LEXIS 92148.

Private Attorneys General Act (PAGA) action was not subject to dismissal because PAGA claims do not require class action certification under Fed. R. Civ. P. 23. Villalpando v. Exel Direct Inc. (N.D. Cal. Mar. 28, 2014), 2014 U.S. Dist. LEXIS 42622.

Damages

Default remedy penalties of Lab C § 2699, viewed as supplements to the penalties under § 20(A) of Wage Order 7-2001 (8 Cal Code Regs §11070), are not excessive or improper under due process principles, given that § 2699(f), permits the court to award a lesser amount to avoid an unjust, arbitrary and oppressive, or confiscatory result. Home Depot U.S.A., Inc. v. Superior Court (Cal. App. 2d Dist. Dec. 22, 2010), 191 Cal. App. 4th 210.


Penalties could be imposed every pay period under Lab C § 210 and Lab C § 225.5 for underpayments arising from violations of a living wage ordinance, and trial court did not abuse its discretion in awarding such penalties or in declining to reduce the penalties under Lab C § 2699(e)(2), although construction of the ordinance was not clearly settled and the employer had good faith arguments. Amaral v. Cintas Corp. No. 2 (Cal. App. 1st Dist. June 11, 2008), 163 Cal. App. 4th 1157.

Trial court reasonably determined under Lab C § 2699(e)(2) that an award of the maximum penalty amount would be unjust based on evidence that (1) after certain dates, the employer took its obligations under Wage Order No. 9 seriously and attempted to comply with the law and (2) the employer was unable to pay penalties from ongoing revenues because of a lost contract. Thurman v. Bayshore Transit Management, Inc. (Cal. App. 4th Dist. Feb. 27, 2012), 203 Cal. App. 4th 1112, 138 Cal. Rptr. 3d 130, 2012 Cal. App. LEXIS 223, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 252 Cal. Rptr. 3d 228.


In an action in which a former employee alleged violations of the Labor Code, the employer was entitled to dismissal of the employee’s claim that he was entitled to recover for damages and for wages due to the employee and all other representative class members under the California Private Attorneys General Act of 2004 (PAGA), Lab C §§ 2698 et seq.; recovery under PAGA was limited to civil penalties, reasonable attorney’s fees and costs pursuant to Lab C § 2699(f)(2) and (g). Silva v. U.S. Bancorp (C.D. Cal. Oct. 6, 2011), 2011 U.S. Dist. LEXIS 152817.


In a meal-and-rest period case, an employee was not entitled to recover private attorney general penalties under both Lab C § 558 and Wage Order No. 9-2001. Lab C § 2699(b) allows the recovery of civil penalties only for violations of the Labor Code, and allowing plaintiff to recover penalties under both provisions would have resulted in an impermissible double recovery for the same act. Thurman v. Bayshore Transit Management, Inc. (Cal. App. 4th Dist. Feb. 27, 2012), 203 Cal. App. 4th 1112, 138 Cal. Rptr. 3d 130, 2012 Cal. App. LEXIS 223, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 252 Cal. Rptr. 3d 228, 448 P.3d 239, 8 Cal. 5th 175, 2019 Cal. LEXIS 6629.

In an overtime and minimum wage case, employees were properly awarded civil penalties, but 75 percent of both awards should have been distributed to the Labor and Workforce Development Agency. Atempa v. Pedrazzani (Cal. App. 4th Dist. Sept. 28, 2018),  27 Cal. App. 5th 809.

Employer’s failure to provide timely meal breaks or pay meal period premiums to employees working shifts slightly in excess of five hours violated meal break requirements and warranted civil penalties in a Private Attorney General Act representative action. The violations were not de minimis absent evidence of practical administrative difficulties, and a significant reduction in the penalty showed that the trial court took into account the employer’s good faith attempt to comply. Carrington v. Starbucks Corp. (Cal. App. 4th Dist. Nov. 27, 2018), 241 Cal. Rptr. 3d 647, 30 Cal. App. 5th 504, 2018 Cal. App. LEXIS 1190.


Allocation of Damages

Lab C § 558(a) provides a civil penalty that consists of both the penalty amount and any underpaid wages, with the underpaid wages going entirely to affected employees as an express exception to the general rule under Lab C § 2699(i) that civil penalties recovered in a private attorneys general action are distributed 75 percent to the Labor and Workforce Development Agency and 25 percent to aggrieved employees. Thurman v. Bayshore Transit Management, Inc. (Cal. App. 4th Dist. Feb. 27, 2012), 203 Cal. App. 4th 1112, 138 Cal. Rptr. 3d 130, 2012 Cal. App. LEXIS 223, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 448 P.3d 239.

PAGA rule of allocation of the civil penalty recovery (75 percent to the Agency and 25 percent to the aggrieved employees) applies when an aggrieved employee files a PAGA action, despite the language in Lab C § 558, providing that the full portion of the penalty that reflects underpaid wages is to be allocated to the affected employees. Mejia v. Merchants Building Maintenance, LLC (Cal. App. 4th Dist. Aug. 13, 2019), 38 Cal. App. 5th 723,  overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 

Lab C § 558, is trumped by the 75/25 percent allocation rule of the California Labor Code Private Attorneys General Act of 2004 (PAGA). PAGA borrows the penalty amounts from the various California Labor Code statutes that it empowers an individual employee to vindicate on behalf of the agency, but PAGA provides the overarching procedural rules that govern such employee-prosecuted claims. Zakaryan v. The Men’s Wearhouse, Inc. (Cal. App. 2d Dist. Mar. 28, 2019), 33 Cal. App. 5th 659, overruled in part, ZB, N.A. v. Superior Court (Cal. Sept. 12, 2019), 8 Cal. 5th 175.

Attorney Fees and Costs

Employee was entitled to an award of attorney fees as a matter of right under Lab C § 1194(a), Lab C § 2699(g), and Lab C § 226(e) after a favorable settlement of a claim for a small amount of overtime wages; given the nature of the dispute, the appellate court reasonably could award a small amount of fees, and it was unnecessary to remand to allow the trial court to correct the error it made when it denied fees. Harrington v. Payroll Entertainment Services, Inc. (Cal. App. 2d Dist. Feb. 28, 2008), 160 Cal. App. 4th 589.


Naked, one-line request in an employee’s prayer for relief for remedies under this provision did not constitute a claim that could even arguably make the fee statute applicable. USS-Posco Industries v. Case (Cal. App. 1st Dist. Jan. 26, 2016), 244 Cal. App. 4th 197.


After judgment was entered in plaintiffs’ favor on their Lab C § 226 claim, the court awarded them attorneys’ fees and costs under Fed. R. Civ. P. 54(d)(2)(B) and Lab C § 2699(g)(1) but the amount sought was reduced because the amount of hours worked and the hourly rate charged were unreasonable, expenses disallowed under CCP § 1033.5 were not recoverable under § 2699, and expenses allowed by § 1033.5 should be requested by application to the court clerk. However, although mediation expenses were not provided for in § 1033.5, the court awarded the same. Fleming v. Covidien, Inc. (C.D. Cal. Oct. 13, 2011), 2011 U.S. Dist. LEXIS 155159, vacated, (9th Cir. Cal. Oct. 3, 2013), 546 Fed. Appx. 616, 2013 U.S. App. LEXIS 20257.

Unpublished decision: Fee-shifting provision of the Private Attorneys General Act of 2004 applies only to employee suits brought in a representative capacity; an employee therefore was not entitled to fees on any of his wrongful termination and statutory violation claims that he brought in his individual capacity. Monaghan v. Telecom Italia Sparkle of N. Am., Inc. (9th Cir. Cal. Apr. 5, 2016), 647 Fed. Appx. 763, 2016 U.S. App. LEXIS 6232.




  Labor Code 2698

This part shall be known and may be cited as the Labor Code Private Attorneys General Act of 2004.

(Added by Stats. 2003, Ch. 906, Sec. 2. Effective January 1, 2004.)

  Labor Code 2699

(a) Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.

(b) For purposes of this part, “person” has the same meaning as defined in Section 18.

(c) For purposes of this part, “aggrieved employee” means any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.

(d) For purposes of this part, “cure” means that the employer abates each violation alleged by any aggrieved employee, the employer is in compliance with the underlying statutes as specified in the notice required by this part, and any aggrieved employee is made whole. A violation of paragraph (6) or (8) of subdivision (a) of Section 226 shall only be considered cured upon a showing that the employer has provided a fully compliant, itemized wage statement to each aggrieved employee for each pay period for the three-year period prior to the date of the written notice sent pursuant to paragraph (1) of subdivision (c) of Section 2699.3.

(e) (1) For purposes of this part, whenever the Labor and Workforce Development Agency, or any of its departments, divisions, commissions, boards, agencies, or employees, has discretion to assess a civil penalty, a court is authorized to exercise the same discretion, subject to the same limitations and conditions, to assess a civil penalty.

(2) In any action by an aggrieved employee seeking recovery of a civil penalty available under subdivision (a) or (f), a court may award a lesser amount than the maximum civil penalty amount specified by this part if, based on the facts and circumstances of the particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.

(f) For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows:

(1) If, at the time of the alleged violation, the person does not employ one or more employees, the civil penalty is five hundred dollars ($500).

(2) If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.

(3) If the alleged violation is a failure to act by the Labor and Workplace Development Agency, or any of its departments, divisions, commissions, boards, agencies, or employees, there shall be no civil penalty.

(g) (1) Except as provided in paragraph (2), an aggrieved employee may recover the civil penalty described in subdivision (f) in a civil action pursuant to the procedures specified in Section 2699.3 filed on behalf of himself or herself and other current or former employees against whom one or more of the alleged violations was committed. Any employee who prevails in any action shall be entitled to an award of reasonable attorney’s fees and costs, including any filing fee paid pursuant to subparagraph (B) of paragraph (1) of subdivision (a) or subparagraph (B) of paragraph (1) of subdivision (c) of Section 2699.3. Nothing in this part shall operate to limit an employee’s right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part.

(2) No action shall be brought under this part for any violation of a posting, notice, agency reporting, or filing requirement of this code, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting.

(h) No action may be brought under this section by an aggrieved employee if the agency or any of its departments, divisions, commissions, boards, agencies, or employees, on the same facts and theories, cites a person within the timeframes set forth in Section 2699.3 for a violation of the same section or sections of the Labor Code under which the aggrieved employee is attempting to recover a civil penalty on behalf of himself or herself or others or initiates a proceeding pursuant to Section 98.3.

(i) Except as provided in subdivision (j), civil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws, including the administration of this part, and for education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees.

(j) Civil penalties recovered under paragraph (1) of subdivision (f) shall be distributed to the Labor and Workforce Development Agency for enforcement of labor laws, including the administration of this part, and for education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes.

(k) Nothing contained in this part is intended to alter or otherwise affect the exclusive remedy provided by the workers’ compensation provisions of this code for liability against an employer for the compensation for any injury to or death of an employee arising out of and in the course of employment.

(l) (1) For cases filed on or after July 1, 2016, the aggrieved employee or representative shall, within 10 days following commencement of a civil action pursuant to this part, provide the Labor and Workforce Development Agency with a file-stamped copy of the complaint that includes the case number assigned by the court.

(2) The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.

(3) A copy of the superior court’s judgment in any civil action filed pursuant to this part and any other order in that action that either provides for or denies an award of civil penalties under this code shall be submitted to the agency within 10 days after entry of the judgment or order.

(4) Items required to be submitted to the Labor and Workforce Development Agency under this subdivision or to the Division of Occupational Safety and Health pursuant to paragraph (4) of subdivision (b) of Section 2699.3, shall be transmitted online through the same system established for the filing of notices and requests under subdivisions (a) and (c) of Section 2699.3.

(m) This section shall not apply to the recovery of administrative and civil penalties in connection with the workers’ compensation law as contained in Division 1 (commencing with Section 50) and Division 4 (commencing with Section 3200), including, but not limited to, Sections 129.5 and 132a.

(n) The agency or any of its departments, divisions, commissions, boards, or agencies may promulgate regulations to implement the provisions of this part.

(Amended by Stats. 2016, Ch. 31, Sec. 189. (SB 836) Effective June 27, 2016.)

Labor Code 2699.3

(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:

(1) (A) 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.

(B) A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.

(C) The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.

(2) (A) The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 60 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.

(B) If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 65 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency, during the course of its investigation, determines that additional time is necessary to complete the investigation, it may extend the time by not more than 60 additional calendar days and shall issue a notice of the extension. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the time limits prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.

(C) 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.

(D) The time limits prescribed by this paragraph shall only apply if the notice required by paragraph (1) is filed with the agency on or after July 1, 2016. For notices submitted prior to July 1, 2016, the time limits in effect on the postmark date of the notice shall apply.

(b) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall commence only after the following requirements have been met:

(1) 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.

(2) (A) The division shall inspect or investigate the alleged violation pursuant to the procedures specified in Division 5 (commencing with Section 6300).

(i) If the division issues a citation, the employee may not commence an action pursuant to Section 2699. The division shall notify the aggrieved employee and employer in writing within 14 calendar days of certifying that the employer has corrected the violation.

(ii) If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court. In such an action, the superior court shall follow precedents of the Occupational Safety and Health Appeals Board. If the court finds that the division should have issued a citation and orders the division to issue a citation, then the aggrieved employee may not commence a civil action pursuant to Section 2699.

(iii) A complaint in superior court alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).

(iv) The superior court shall not dismiss the action for nonmaterial differences in facts or theories between those contained in the notice of violation provided to the division and employer pursuant to paragraph (1) and the complaint filed with the court.

(B) If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.

(3) (A) Nothing in this subdivision shall be construed to alter the authority of the division to permit long-term abatement periods or to enter into memoranda of understanding or joint agreements with employers in the case of long-term abatement issues.

(B) Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.

(C) An employer who has been provided notice pursuant to this section may not then enter into consultation with the division in order to avoid an action under this section.

(4) The superior court shall review and approve any proposed settlement of alleged violations of the provisions of Division 5 (commencing with Section 6300) to ensure that the settlement provisions are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement relating to health and safety laws shall be submitted to the division at the same time that they are submitted to the court. This requirement shall be construed to authorize and permit the division to comment on those settlement provisions, and the court shall grant the division’s commentary the appropriate weight.

(c) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision other than those listed in Section 2699.5 or Division 5 (commencing with Section 6300) shall commence only after the following requirements have been met:

(1) (A) 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.

(B) A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.

(C) The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.

(2) (A) The employer may cure the alleged violation within 33 calendar days of the postmark date of the notice sent by the aggrieved employee or representative. The employer shall give written notice within that period of time by certified mail to the aggrieved employee or representative and by online filing with the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.

(B) (i) Subject to the limitation in clause (ii), no employer may avail himself or herself of the notice and cure provisions of this subdivision more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.

(ii) No employer may avail himself or herself of the notice and cure provisions of this subdivision with respect to alleged violations of paragraph (6) or (8) of subdivision (a) of Section 226 more than once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.

(3) If the aggrieved employee disputes that the alleged violation has been cured, the aggrieved employee or representative shall provide written notice by online filing with the agency and by certified mail to the employer, including specified grounds to support that dispute, to the employer and the agency. Within 17 calendar days of the receipt of that notice, the agency shall review the actions taken by the employer to cure the alleged violation, and provide written notice of its decision by certified mail to the aggrieved employee and the employer. The agency may grant the employer three additional business days to cure the alleged violation. If the agency determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the employee may proceed with the civil action pursuant to Section 2699. If the agency determines that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.

(d) 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.

(e) This section shall remain in effect only until July 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before July 1, 2021, deletes or extends that date.

(Amended by Stats. 2016, Ch. 31, Sec. 190. (SB 836) Effective June 27, 2016. Repealed as of July 1, 2021, by its own provisions. See later operative version added by Sec. 191 of Stats. 2016, Ch. 31.)

Labor Code 2699.3

(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met:

(1) (A) 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.

(B) A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.

(C) The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.

(2) (A) The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 60 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699.

(B) If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 65 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the time limits prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.

(C) 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.

(b) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall commence only after the following requirements have been met:

(1) 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.

(2) (A) The division shall inspect or investigate the alleged violation pursuant to the procedures specified in Division 5 (commencing with Section 6300).

(i) If the division issues a citation, the employee may not commence an action pursuant to Section 2699. The division shall notify the aggrieved employee and employer in writing within 14 calendar days of certifying that the employer has corrected the violation.

(ii) If by the end of the period for inspection or investigation provided for in Section 6317, the division fails to issue a citation and the aggrieved employee disputes that decision, the employee may challenge that decision in the superior court. In such an action, the superior court shall follow precedents of the Occupational Safety and Health Appeals Board. If the court finds that the division should have issued a citation and orders the division to issue a citation, then the aggrieved employee may not commence a civil action pursuant to Section 2699.

(iii) A complaint in superior court alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).

(iv) The superior court shall not dismiss the action for nonmaterial differences in facts or theories between those contained in the notice of violation provided to the division and employer pursuant to paragraph (1) and the complaint filed with the court.

(B) If the division fails to inspect or investigate the alleged violation as provided by Section 6309, the provisions of subdivision (c) shall apply to the determination of the alleged violation.

(3) (A) Nothing in this subdivision shall be construed to alter the authority of the division to permit long-term abatement periods or to enter into memoranda of understanding or joint agreements with employers in the case of long-term abatement issues.

(B) Nothing in this subdivision shall be construed to authorize an employee to file a notice or to commence a civil action pursuant to Section 2699 during the period that an employer has voluntarily entered into consultation with the division to ameliorate a condition in that particular worksite.

(C) An employer who has been provided notice pursuant to this section may not then enter into consultation with the division in order to avoid an action under this section.

(4) The superior court shall review and approve any proposed settlement of alleged violations of the provisions of Division 5 (commencing with Section 6300) to ensure that the settlement provisions are at least as effective as the protections or remedies provided by state and federal law or regulation for the alleged violation. The provisions of the settlement relating to health and safety laws shall be submitted to the division at the same time that they are submitted to the court. This requirement shall be construed to authorize and permit the division to comment on those settlement provisions, and the court shall grant the division’s commentary the appropriate weight.

(c) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision other than those listed in Section 2699.5 or Division 5 (commencing with Section 6300) shall commence only after the following requirements have been met:

(1) (A) 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.

(B) A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code.

(C) The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699.

(2) (A) The employer may cure the alleged violation within 33 calendar days of the postmark date of the notice sent by the aggrieved employee or representative. The employer shall give written notice within that period of time by certified mail to the aggrieved employee or representative and by online filing with the agency if the alleged violation is cured, including a description of actions taken, and no civil action pursuant to Section 2699 may commence. If the alleged violation is not cured within the 33-day period, the employee may commence a civil action pursuant to Section 2699.

(B) (i) Subject to the limitation in clause (ii), no employer may avail himself or herself of the notice and cure provisions of this subdivision more than three times in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.

(ii) No employer may avail himself or herself of the notice and cure provisions of this subdivision with respect to alleged violations of paragraph (6) or (8) of subdivision (a) of Section 226 more than once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.

(3) If the aggrieved employee disputes that the alleged violation has been cured, the aggrieved employee or representative shall provide written notice by online filing with the agency and by certified mail to the employer, including specified grounds to support that dispute, to the employer and the agency. Within 17 calendar days of the receipt of that notice, the agency shall review the actions taken by the employer to cure the alleged violation, and provide written notice of its decision by certified mail to the aggrieved employee and the employer. The agency may grant the employer three additional business days to cure the alleged violation. If the agency determines that the alleged violation has not been cured or if the agency fails to provide timely or any notification, the employee may proceed with the civil action pursuant to Section 2699. If the agency determines that the alleged violation has been cured, but the employee still disagrees, the employee may appeal that determination to the superior court.

(d) 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.

(e) This section shall become operative on July 1, 2021.

(Repealed (in Sec. 190) and added by Stats. 2016, Ch. 31, Sec. 191. (SB 836) Effective June 27, 2016. Section operative July 1, 2021, by its own provisions.)

Labor Code 2699.5

The provisions of subdivision (a) of Section 2699.3 apply to any alleged violation of the following provisions: subdivision (k) of Section 96, Sections 98.6, 201, 201.3, 201.5, 201.7, 202, 203, 203.1, 203.5, 204, 204a, 204b, 204.1, 204.2, 205, 205.5, 206, 206.5, 208, 209, and 212, subdivision (d) of Section 213, Sections 221, 222, 222.5, 223, and 224, paragraphs (1) to (5), inclusive, (7), and (9) of subdivision (a) of Section 226, Sections 226.7, 227, 227.3, 230, 230.1, 230.2, 230.3, 230.4, 230.7, 230.8, and 231, subdivision (c) of Section 232, subdivision (c) of Section 232.5, Sections 233, 234, 351, 353, and 403, subdivision (b) of Section 404, Sections 432.2, 432.5, 432.7, 435, 450, 510, 511, 512, 513, 551, 552, 601, 602, 603, 604, 750, 751.8, 800, 850, 851, 851.5, 852, 921, 922, 923, 970, 973, 976, 1021, 1021.5, 1025, 1026, 1101, 1102, 1102.5, and 1153, subdivisions (c) and (d) of Section 1174, Sections 1194, 1197, 1197.1, 1197.5, and 1198, subdivision (b) of Section 1198.3, Sections 1199, 1199.5, 1290, 1292, 1293, 1293.1, 1294, 1294.1, 1294.5, 1296, 1297, 1298, 1301, 1308, 1308.1, 1308.7, 1309, 1309.5, 1391, 1391.1, 1391.2, 1392, 1683, and 1695, subdivision (a) of Section 1695.5, Sections 1695.55, 1695.6, 1695.7, 1695.8, 1695.9, 1696, 1696.5, 1696.6, 1697.1, 1700.25, 1700.26, 1700.31, 1700.32, 1700.40, and 1700.47, Sections 1735, 1771, 1774, 1776, 1777.5, 1811, 1815, 2651, and 2673, subdivision (a) of Section 2673.1, Sections 2695.2, 2800, 2801, 2802, 2806, and 2810, subdivision (b) of Section 2929, and Sections 3073.6, 6310, 6311, and 6399.7.

(Amended by Stats. 2019, Ch. 497, Sec. 184. (AB 991) Effective January 1, 2020.)

  Labor Code 2699.6

(a) This part shall not apply to an employee in the construction industry with respect to work performed under a valid collective bargaining agreement in effect any time before January 1, 2025, that expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for the employee to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate, and the agreement does all of the following:

(1) Prohibits all of the violations of this code that would be redressable pursuant to this part, and provides for a grievance and binding arbitration procedure to redress those violations.

(2) Expressly waives the requirements of this part in clear and unambiguous terms.

(3) Authorizes the arbitrator to award any and all remedies otherwise available under this code, provided that nothing in this section authorizes the award of penalties under this part that would be payable to the Labor and Workforce Development Agency.

(b) Except for a civil action under Section 2699, nothing in this section precludes an employee from pursuing any other civil action against an employer, including, but not limited to, an action for a violation of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), Title VII of the Civil Rights Act of 1964 (Public Law 88-352), or any other prohibition of discrimination or harassment.

(c) The exception provided by this section shall expire on the date the collective bargaining agreement expires or on January 1, 2028, whichever is earlier.

(d) For purposes of this section, “employee in the construction industry” means an employee performing work associated with construction, including work involving alteration, demolition, building, excavation, renovation, remodeling, maintenance, improvement, repair work, and any other work as described by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, and other similar or related occupations or trades.

(e) This section shall remain in effect only until January 1, 2028, and as of that date is repealed.


Private Attorneys General Act (PAGA) – Filing

Employer Response or Cure Notice

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