120 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com the violation and regardless of any actual injury—so long as the plaintiff can claim a single violation. A current or former employee becomes a PAGA plaintiff simply by sending a letter to the LWDA and the employer to notify them of the alleged Labor Code violations and then waiting for 65 days to see if the LWDA itself will take action (which it almost never does).427 Once the LWDA fails to act, the employee is free to sue, ostensibly on behalf of the LWDA and the other “aggrieved employees.”428 Plaintiffs’ lawyers like to bring PAGA actions because PAGA creates private rights of action to sue for Labor Code violations that previously only the Labor Commissioner could address, PAGA creates massive, unlimited civil penalties and multiplies potential liability still further because it empowers employees to sue on behalf of others as well as themselves, and because in doing so they need not meet the requirements of a class action, PAGA enables a plaintiff affected by one violation to seek penalties for all violations affecting other employees, and not just those violations that personally affected the plaintiff, PAGA can enable plaintiffs to sue for civil penalties for themselves and other aggrieved employees even if the plaintiffs have agreed to dismiss their own individual Labor Code claims, PAGA enables massive discovery of private information such as the contact information of a company’s employees, and arbitration agreements waiving representative PAGA claims are unenforceable. PAGA suits have powerfully proliferated since PAGA’s early days, especially when plaintiffs’ counsel discovered that PAGA actions were immune to arbitration agreements429 and that PAGA-only actions cannot be removed to federal court. While the annual number of PAGA notices sent to the LWDA remained under 700 during the first four years of PAGA’s existence, annual LWDA notices numbered in a much higher range—from 1,338 to 2,001— during 2008-2013, then jumped to a range of 3,703 to 6,307 during 2014-2018, and ranged from 2,690 to 6,431 during 2019 to 2021.430 A 2021 development further incentivizing PAGA actions was a Court of Appeal decision holding that venue is proper for a PAGA action in any California county where Labor Code violations allegedly occurred, even if the defendant’s principal place of business is not in that county and even though the plaintiff never worked there. Noting that a PAGA plaintiff is suing as the State of California’s designated proxy, the Court of Appeal stated: “We see no reason why the Legislature would restrict the proper venue to the location of an individual employee when she is suing on behalf of all aggrieved employees, not herself, and she has no individual claim.”431 5.15.1 The PAGA legislation When federal and state governments create civil penalties for certain statutory violations, the mission of enforcing these penalties is typically entrusted to public officials who exercise prosecutorial discretion. In California it’s different. PAGA432 created two significant problems for California employers. First, as of 2004, new civil penalties apply to violations of all Labor Code provisions “except those for which a civil penalty is specifically provided.” (See § 7.25.2.)433 Second, “aggrieved employees”434 may sue, in lieu of the Labor Commissioner, to recover the civil penalty, with the plaintiff and other aggrieved employees to collect 25% of the penalties (the remainder going to the state).435 The prevailing plaintiff also can recover costs and attorney fees.436 Recovery of civil penalties is not
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