PAGA lawsuits have similarities and differences to wage and hour class action lawsuits, and plaintiffs may assert both: Prior to commencing a PAGA action, the employee must provide written notice to the Labor and Workforce Development Agency (LWDA) notifying the LWDA of the alleged violations in writing, a copy of which is also sent to the employer. Requires that the plaintiff suffered a typical and common violation similar to the other members. (a)(1)-(2).) Plaintiffs can assert those individual claims on behalf of themselves, or they can also assert them as a class action on behalf of similarly situated employees. PAGA Penalties are Properly Assessed at One Hundred Dollars For Each Aggrieved Employee Per Pay Period Prior to the Filing of Lawsuit. (Lab. When determining the average number of violations per workweek, note that an employee can only collect one meal and one rest period penalty each shift, for a maximum of two premium payments per workday. One employee can bring a class action on behalf of other employees. The steadily increasing number can be explained by three characteristics unique to PAGA actions: the absence of class certification requirements, that they are not arbitrable, and cannot be waived. (Williams v. Superior Court (2017) 3 Cal.5th 531.) Settlement trends in 2018 for combined class and PAGA actions show that the cost of buying peace increases as the case progresses. The good news is that there are several options designed to simplify the calculation process without risking rejection during the court approval process. No time extensions are available, so if the letter isn't immediately acted upon, the employer will miss the opportunity to significantly reduce potential penalties, he said. How are PAGA penalties calculated? Employers should note that they do have an opportunity to correct PAGA violations and avoid penalties. An experienced PAGA practitioner should be able to chart the best course of action and guide you through the legal terrain. Are the shifts or lunch breaks rounded or exactly eight hours or 30 minutes, respectively? hUN0K$KxH!Z"-Y Llc[>3`3%<3IkS1id|_7*an1MjF/gZ9fZ"BWWtk|se[&ISIi8FV}'lhY_ Euu8]o0hyylpt[oM<15Otg?~}h( Moreover, for such claims: Taking the same example (50 employees who did not receive compliant wage statements and were not paid 30 minutes of overtime per workday who were each paid $25 per hour) and assuming these violations occurred over the course of four years, the class action liability could be $1,102,500: Combining the class damages with the stacked PAGA claims of $260,000, the potential liability exposure is now $1,362,500. SHRM Employment Law & Compliance Conference, California Employers Face Significant Penalties for Pay Stub Violations, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, White House Takes Action Against Migrant Child Labor, Recruiters Brace for a Challenging Year Ahead, State by State: Hires, Quits, Job Openings and Unemployment. (Lab. Employers need to regularly audit their practices for compliance, Sarchet said, and the audit should cover more than just wage statements. In general, these penalties are payable to the State of California.56 However, an employee can sometimes recover up to 25% of the penalty by bringing a lawsuit under the Private Attorneys General Act.57 These are called "PAGA" claims. Even simple formatting errors can result in penalties, Ahearn noted. KChkBLViG3>%G!RKW(!9El17S*B2 xPD. In Amaral v. Cintas Corp., the California Court of Appeal held that a subsequent violation does not trigger until the employer has learned that its conduct violates the Labor Code. (Amaral v. Cintas Corp. (2008) 163 Cal.App.4th 1157, 1209.) Read the first parthere and the second parthere. 5For purposes of damages under Labor Code section 226, initial violation and subsequent violation are defined differently such that there is only one initial violation per employee. Lab. Code, 2699, subds. If you identify problems, you should immediately correct any missing or inaccurate information on the wage statements. Need help with a specific HR issue like coronavirus or FLSA? (Lab. ), Fourth, there is currently a split in the courts as to whether aggrieved employees can recover unpaid wages as a civil penalty under the PAGA. Although you are not required to file a response addressing the charges in the PAGA notice, standard practice for many counsel is to file a written response with the LWDA. May 5, 2010, 2010 WL 1838726 at **2-6 [stacking PAGA penalties when calculating amount in controversy].) Every subsequent violation carries a $200 penalty. SHRM Online that even hypertechnical violations may be costly for employers. Remember, 75% of PAGA penalties, which are all up to . AB1654 (Chapter 529, Statutes of 2018), signed into law on September 19, 2018, now exempts employers and employees in the construction industry and under a collective bargaining agreement from . (Lab. A Congressional committee has approved maximum penalties of $70,000 for serious items and $700,000 for repeated, willful, and failure-to-abate items for violations of Occupational Safety and Health Administration (OSHA) standards. (f)(2).) But that would be effective January 2021 in all likelihood, as the current session is over. The employer has 33 days from the date of the letter to make pay stub corrections. As such, interest rates can and should be included within your damages workup. (Lab. The class-wide data, sampling of time and wage records, and written policies and procedures should provide most attorneys, and the mediator, with the framework needed to evaluate damages prior to reaching a reasonable settlement on behalf of the class representative and all others similarly situated and/or aggrieved. Assess whether your client will make an adequate class representative. A PAGA-only action without class action component will often be turned into a hybrid class/PAGA action for settlement purposes. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Code, 558, subds. For Labor Code provisions that do not specify the penalty amount, PAGA provides default civil penalties at $100 for every employee for every pay period for the first violation, and $200 for each violation thereafter (though case law may provide an argument that PAGA penalties are limited to violations that occur after the PAGA notice). Finally, when negotiating the scope of the pre-mediation exchange, keep in mind that a plaintiffs right to statewide discovery is extremely broad in wage-and-hour class and PAGA actions. PAGA applies to all employers regardless of size. Because Labor Code section 226 violations carry the heaviest penalty amount at $250 for the initial violation and $1,000 for subsequent violations, correcting the wage statements soon after the PAGA notice will allow you to argue that there are only a few subsequent violations for which penalties may be assessed, if at all. For example, employers should also ensure that they are providing meal and rest breaks, paying employees the required penalties if breaks are missed, and recording the penalty payments on wage statements. It benefits employees to receive a paycheck every week, but employers that pay workers with that level of frequency double their exposure to potential wage statement penalties, he said. Please enable scripts and reload this page. In other words, there is a one-year statute of limitations when it comes to PAGA lawsuits. Overturning the ruling of two lower courts, on July 15, 2021, the Court held in Ferra v.Loews Hollywood Hotel, LLC that meal and rest premiums must be paid at the "regular rate" not the base hourly rate. (The terms injury and knowing and intentional failure are further defined in section 226 (e) (2)). The plaintiff in Ferra v. Loews . The California Supreme Court just made it even more difficult to do business in California. of PAGA penalties and a trial court's consideration regarding same. "A single mistake can lead to several penalties," noted Bruce Sarchet, an attorney with Littler in Sacramento. Even then, the Legislature could pass a law clarifying the calculation of the meal / rest period penalty. This will save you and/or your expert a significant amount of time when it comes to analyzing the voluminous records. Well, [i]f an employer fails to provide an employee a meal period the employer shall pay the employee one additional hour of pay at the employees regular rate of compensation for each workday that the meal period is not provided. (Lab. Many attorneys dont have the resources to conduct an independent analysis of a large production of time and wage records and agreeing to a smaller sample size may be the most practicable approach. A1 = Shift duration A2 = Shift start $("span.current-site").html("SHRM MENA "); hbbd``b`j@1` ,DF-HO L[@+ N Unpaid minimum wages: (Total number of workweeks over the four-year period x average hours of unpaid minimum wages per workweek x average minimum wage over the four-year period) x 2.0. 2.PAGA cases are representative claims, which are different than class actions. Workers who succeed in a lawsuit under PAGA recover civil penalties. Code, 226.3; Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, 680.). It also remains unsettled as to whether PAGA penalties for multiple violations in a pay period can be added together, also known as stacking. For example, 50 employees who receive non-compliant wage statements (e.g., non-itemized deductions) and were not paid five hours of overtime per pay period (30 minutes of overtime per workday) over the course of a year (26 pay periods) may be able to claim penalties on the basis of potentially two separate violations per pay period: one violation for each non-itemized wage statement and one for unpaid overtime per pay period. California legislation enacted last year found that employers are experiencing a high volume of PAGA claims. Legal precedent has established that PAGA provides a "civil penalty." This means that employees can recover both the statutory penalty associated with the Labor Code provision at issue, as well as civil penalties under PAGA, thereby creating a stacking of penalties against the employer. Under PAGA, Plaintiff may seek penalties in the sum of one hundred dollars ($100) per [*3] aggrieved employee, per pay period for an initial Labor Code violation, and two hundred dollars ($200) for each subsequent violation per aggrieved employee, per pay period. ), Failure to reimburse business expenses: Total number of employees during the four-year statutory period x average amount each class member spent on necessary business expenditures. And, the penalties for misclassifying workers as independent contractors instead of employees can be severe. At some point in our careers, we have all heard the adage, I went to law school because Im terrible at math, or words to that effect. 50 0 obj <>stream 4 The statute of limitations for non-compliant wage statements is one year. $100/ penalty for subsequent violations x 35/aggrieved former and current employees x 25/subsequent pay periods = $87,500. Labor Code section 226 (e) (1) provides that an employee who suffers injury as a result of a knowing and intentional failure to comply with subdivision (a) is liable for up to $4,000 plus costs and reasonable attorney's fees. so long as they have suffered at least one alleged Labor Code violation. Bucking the trend of unrelentingly bad news for employers in the state, the California Court of Appeal has held that the default (lower) penalties found in the Labor Code Private Attorneys General Act ("PAGA") and not the heightened penalties set forth in Labor Code section 226.3 ("Section 226.3") apply to a run-of-the-mill PAGA claim involving Mamika v. Barca (1998) 68 Cal.App4th 487 An employee will not be awarded waiting time penalties if he or she avoids or refuses to receive payment of the wages due. If you dont have the resources to go through all the records, do a spot check for unpaid wages and analyze whether any information required under Labor Code section 226, subdivision (a) is missing from the wage statement exemplars. The penalties under California law can add up quickly. For example, California Labor Code 226.8 provides that if the California Labor and Workforce Development Agency or a civil court finds willful misclassification, penalties can be assessed between $5,000-$15,000 for each violation. Based on the total penalties divided by the total number of aggrieved employees, the plaintiff argued that no one employee's penalties exceeded the $75,000 jurisdictional minimum as each employee would be entitled to only approximately $11,000 in penalties. Penalties for Missed Meal and Rest Breaks California law requires employers to give employees a paid ten-minute rest break for every four hours worked (or major fraction of four hours). (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256.) Talk to your client to find out everything he or she recalls about the workplace conditions and to assess which Labor Code violations were most prevalent. You can also demand a Belaire-West administration, which will give you access to putative class members who may provide supporting declarations prior to mediation. While reviewing the timesheets, ask yourself if the records evince other unlawful wage-and-hour practices. There are 17 such orders that are also known as IWC Orders, or Wage Orders. (Ibid.) When dealing with a large class size, the best approach is to agree on a statistically significant random sampling of time and wage records. by the author. The IWC is currently not in operation, but the Division of Labor Standards Enforcement (DLSE) continues to enforce the provisions of the wage orders. Specifically, corrected and fully compliant wage statements must be provided to every employee for every pay period going back three years from the date of the PAGA notice (Cal. Send a letter to the defense outlining the documents, data and/or additional materials you need as soon as the mediation discussion begins. It did not determine the amount of damages but held that the regular rate of pay provided the appropriate base for calculating damages for the plaintiffs' claims based on unpaid non-overtime hours. The employee can also seek penalties under PAGA for Labor Code violations that do not carry their own penalties. However, Californias Unfair Competition Law (UCL) can be used to extend the class action recovery period to four years for claims seeking restitution, including claims for unpaid wages, unpaid overtime, meal and rest break premiums, and reimbursement of necessary business expenses. San Jose, CA, 95113-2324, 6801 Koll Center Parkway, Suite 210 Defendants often ask for a stay on formal discovery until mediation takes place. First, although the majority of courts have held that PAGA penalties can be recovered alongside other statutory penalties (such as meal break premiums), some courts hold that a PAGA penalty cannot be recovered if another penalty is available. If the Labor Code already provides for a civil penalty for the underlying violation, the employee can sue to recover that penalty on behalf of similarly aggrieved employees and the State. Code, 226, subd. PAGA penalties can quickly accumulate given the many possible Labor Code violations and the fact that penalties accrue for each violation (per pay period), which means that employers who do not realize they are doing something wrong face more liability as time goes on. Worse, the Labor Code doesn't need to cover a penalty stipulation, PAGA places fines on anything not covered. This was the third in a three-part series of articles on California wage statement laws. For example, if the PMK admits to an unlawful policy that was implemented on a class-wide basis regardless of job title or job location, increase your quantifier. For more information, contact the author at SLee@fisherphillips.com or (213) 402-9553. Depending on the type and extent of the wage and hour violations, some claims should be litigated, while others are better left tabled. . Section 226.3 provides a penalty of up to " [$250] for an initial citation and [$1,000] for a subsequent citation, for which the employer fails to provide the employee a wage deduction statement or fails to keep the records required in subdivision (a) of Section 226 " (emphasis added). Of course, these decisions were issued before the Ninth Circuit's opinions in Baumann and Yocupicio, which, as we have seen, preclude the aggregation of PAGA penalties for purposes of removal. But the . It is worth noting that the time period for which penalties can be assessed is limited to one year before the date of filing of the PAGA lawsuit, not the date of the PAGA notice. The sample relied upon must be representative and the results obtained must be sufficiently reliable to satisfy concerns of fundamental fairness. (Duran v. U.S. Bank Natl Assn (2014) 59 Cal.4th 1, 42.) }); if($('.container-footer').length > 1){ The employer's allegedly unlawful practice had ended on June 17, 2007, and hence the one-year statute of limitations for the PAGA claim lapsed on June 17, 2008. Failure to pay overtime, failure to provide meal breaks and failure to provide rest breaks carry an initial PAGA penalty of $50.00, and a subsequent penalty of $100.00. (c).) These penalties are assessed on a per-employee basisup to a maximum of $4,000 for each employee who receives inaccurate pay stubs. Individual Damages in Addition to PAGA Penalties. 2012) 2012 WL 2373372 at *17; Schiller v. Davids Bridal, Inc. (E.D. The plaintiff brought a wage and hour action alleging various violations of the California Labor . What Are PAGA Penalties? Under AB 673, these penalties are . } Statutory penalties under the California Labor Code start at $50 for the first violation and rise to $100 for each subsequent violation. %PDF-1.5 % "Those numbers add up really fast," Ahearn said. (a).) This law allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency ("LWDA . Defending against PAGA claims, class action lawsuits, or other legal action, Managing challenging employee situations such as leaves of absence, a remote workforce, or complaints of harassment, Other legal issues related to hiring, compensating, managing, and separating employees. (Lab. For large employers and/or for continuing violations, these penalties can quickly add up. In most cases, the employees counsel will send you a request for the employees personnel file long before any notice is filed with the LWDA. A violation occurs each time an individual . The court's decision to reduce the PAGA penalties award was driven by its recognition that the retailer had made a good faith effort to comply with Section 226, that it would be unreasonable to penalize the retailer by awarding maximum PAGA penalties for violations stemming from its practice of awarding bonuses that benefit employees, and . (United Parcel Service, Inc. v. Superior Court (2011) 196 Cal.App.4th 57, 69.). The following formulas can be useful to create high/low scenarios in your damages model for some of the main Labor Code violations. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. $("span.current-site").html("SHRM China "); The Industrial Welfare Commission issues orders regulating the wages, hours, and working conditions in certain industries or occupations. Thats not to say that you should stop engaging in formal discovery, but an informal exchange offers incentives for the defense to provide evidence that they otherwise wouldnt absent a lengthy meet and confer process, discovery motion practice, and all the delays and unpredictability attendant thereto. San Mateo, CA, 94402-3535, 55 South Market St., Suite 900 In other words, for each employee in the PAGA period, one penalty is assessed against the employer for each predicate violation that occurs within a pay period. California Labor Code 203 provides that an employer's willful failure to remit payment entitles the employee to one full day's pay, up to 30 days, from the date the employee was terminated until the employee is paid, or files a lawsuit. You have successfully saved this page as a bookmark. This also assumes that there were exactly 50 employees during each pay period during the one-year period. The PAGA does not create a private right of action to directly enforce a wage order but PAGA actions can serve to indirectly enforce certain wage order provisions by enforcing statutes that require compliance with wage orders. (Thurman, supra, 203 Cal.App.4th, at p. There are many free resources online to help you yield a truly random and statistically significant class size, including calculators that determine acceptable deviations, margins of error, and other statistical factors. This includes causes for unpaid minimum and overtime wages in addition to any unpaid premiums for meal/rest break violations. Second, while a court cannot reduce the amount of penalties assessed against the employer to zero, courts do have discretion to award a lesser amount than the maximum civil penalty amount if to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory. (Lab. Code, 1194.2.). Code, 2698 et seq. Cal. Your call to action is often triggered before you even receive a PAGA notice. The formula used to calculate PAGA penalties is therefore the same regardless of the predicate violation: (Initial violation penalty x total number of employees in the one-year period) + (subsequent violation penalty x [total number of pay periods in the one-year period total number of employees in the one-year period]). Code, 512, subd. Finally, depending on the Labor Code violations alleged and the fact-specific issues in your case, you may want to request additional documents for each employee selected for the sampling, such as documents regarding final payment of wages, business expense reimbursements, meal period waivers, and/or on-duty meal period agreements. Code, 1197.1, subds. to calculate the hour of premium pay owed when employers fail to provide a compliant meal or rest period. That could be, for purposes of 203 penalties, the date of your last paycheck, or earlier. The plaintiff can sue on behalf of other employees who suffered different violations than those suffered by the plaintiff so long as the plaintiff suffered at least one violation. 50 0 obj < > stream 4 the statute of limitations for wage. Rounded or exactly eight hours or 30 minutes, respectively, Inc. ( E.D as a.. 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