10 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com for plaintiffs’ lawyers and a bane for employers. Here are some of the features that make PAGA particularly painful for the employer community: PAGA creates massive civil penalties—generally $100 per employee per pay period for first violations and twice that for further violations—for employer failures to comply with numerous, often obscure, provisions of the Labor Code and the IWC Wage Orders, though newly-enacted legislation aims to place caps on the amount of civil penalties, PAGA sometimes creates massive penalties for even hyper-technical violations, such as penalties for a wage statement’s failure to state an employer’s legal name and address and to state the first and the last inclusive dates of relevant pay periods, PAGA makes maximum penalties the default, thereby forcing liable employers to ask courts to reduce penalties that are “unjust, arbitrary and oppressive, or confiscatory,” PAGA awards civil penalties on top of the substantial statutory penalties already prescribed for the same offense (e.g., unpaid wages and unprovided meal and rest breaks), PAGA enables aggrieved employees to become private attorneys general by merely filing a notice with the LWDA and then waiting for 65 days of inaction by the Labor Commissioner, who almost never chooses to investigate the matter, PAGA permits profit-seeking private plaintiffs’ counsel—entitled to attorney fees on behalf of prevailing plaintiffs—to seek PAGA civil penalties in the name of the California Labor Commissioner, even though the Commissioner might exercise prosecutorial discretion to decline to seek them, PAGA permits plaintiffs’ counsel to forum-shop by obtaining venue in any county where the company does business, regardless of where its headquarters are and regardless of where the plaintiff lives, PAGA enables multiple law firms to simultaneously sue the same defendant, for the same alleged Labor Code violations, requiring the defendant to stave off various law firms on the same issues, with each firm vying to be the first to reduce its PAGA claims to judgment, PAGA enables plaintiffs’ counsel to broadly discover private information such as employee contact information, and then use discovery to ferret out Labor Code violations the plaintiffs themselves never experienced or even knew about before suing, PAGA enables plaintiffs’ counsel to pursue PAGA claims broader than the claims they specified in the LWDA notice, thereby enabling counsel to act as roving vigilantes seeking justice at the employer’s expense, PAGA enables plaintiffs to seek civil penalties for themselves and other employees even when the plaintiffs have settled their own individual Labor Code claims, PAGA confronts defendants with one-way interventions, where an employer loss would strip the employer of defenses in later Labor Code claims, while an employer win would not bind any employee suing in later Labor Code claims,
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