Employer Friendly PAGA Representative Decision

Back in May, the California Supreme Court clarified an employer’s obligation to provide its employees with a weekly day of rest when employees filed a suit against Nordstrom. (Read the article here.) After the Court held that Nordstrom did not violate the Labor Code because the employees did not work more than six consecutive days in any Nordstrom workweek, the employees circled back for one more try at their claims under the Private Attorney General Act (PAGA). PAGA allows an aggrieved employee to bring a claim on behalf of himself or herself and other current or former employees to recover civil penalties for violations of the Labor Code.

The employees appealed the dismissal of their case from the District Court and requested to substitute in another employee who did work more than six consecutive days in a Nordstrom workweek. Despite the employees’ continued efforts, the Court affirmed the prior dismissal and held that the employees no longer qualified as “aggrieved” employees in light of the Supreme Court decision stating that they did not work more than six consecutive days.

Further, the substitute employees must have complied with other PAGA requirements before bringing suit. These requirements include written notice of the Labor Code violations to both the employer and the Labor and Workforce Development Agency describing facts and theories supporting the violation. If the agency provides notice that it does not intend to investigate the claim or if it fails to respond in 33 days, the employee may then bring a civil action against the employer.

While a PAGA claim can be devastating to an employer, this case allows employers to rest assured that the court will enforce the strict requirements that employees must follow prior to bringing a civil claim.

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