As such, practitioners should review the applicable wage orders to assess whether additional penalties can be levied against the employer for violations extending beyond those enumerated in Labor Code section 2699.5. San Mateo, CA, 94402-3535, 55 South Market St., Suite 900 (Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554.). The number of these PAGA notices the LWDA received each year has significantly increased, from 4,000 in 2014 to what is expected to exceed over 7,000 filings in 2022. Another wrinkle in the law is that penalties are assessed per paycheck, Sarchet explained. PAGA applies to all employers regardless of size. Members can get help with HR questions via phone, chat or email. 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. Code, 2669.3, subd. Poorly written or facially unlawful wage-and-hour policies can significantly bolster your damages calculations. For example, 10 employees each with 24 pay periods with a meal and rest period violation in each pay period translates to nearly $95,000 of PAGA exposure. Do you maintain or cover the cost of maintaining uniforms? 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. PAGA allows aggrieved employees to sue over alleged labor code violations on behalf of themselves and other employees and to step into the shoes of state regulators to recover civil penalties. The good news is that there are several options designed to simplify the calculation process without risking rejection during the court approval process. 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. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. And, the penalties for misclassifying workers as independent contractors instead of employees can be severe. at p. Under PAGA, the default civil penalty for an employer's initial violation is one hundred dollars ($100) per employee per pay period, and two hundred dollars ($200) per pay period for any subsequent violations (though PAGA plaintiffs are required to remit 75% of recovered penalties to the Labor and Workforce Development Agency). . Because PAGA actions are generally a product of a copious amount of information that has been amassed by the employees counsel prior to providing the PAGA notice, you should also use counterinvestigative strategies, such as encouraging employees to report any outside contact inquiring about working conditions, or wage and hour matters. (e).) This is particularly essential for companies with large workforces, as social media advertisements carry the potential to reach the widest audience. 2 PAGA fines can be significant. For the typical Class, PAGA, and UCL action, here is what you must know before mediating: 1) total number of employees during the four-year period; 2) total number of workweeks during the four-year period; 3) total number of employees who were terminated and/or quit during the three-year period; 4) total number of employees during the one-year period; and, 5) total number of pay periods during the one-year period. The following formulas can be useful to create high/low scenarios in your damages model for some of the main Labor Code violations. The Industrial Welfare Commission issues orders regulating the wages, hours, and working conditions in certain industries or occupations. For cases that require deeper investigation, consider producing your client for deposition and/or taking the deposition of the defendants person(s) most knowledgeable regarding its wage-and-hour policies, practices, and procedures. violates Wage Orders regulating hours and days of work ($50 for the initial violation and $100 for subsequent violations); fails to pay minimum wages ($100 for the initial violation and $250 for subsequent violations). The most streamlined approach to calculating class-wide damages is to multiply the total number of workweeks during the applicable damages period by a reasonable quantifier. Based on our hypothetical, our employee is entitled to $4,800 ($20 per hour x 8 Hours x 30 days). The plaintiff brought a wage and hour action alleging various violations of the California Labor . Dont forget to check for second meal periods which must be provided for shifts that are over 10 hours! The requirement for fully compliant corrected wage statements should be interpreted to mean wage statements that comply with all nine requirements set forth in Labor Code section 226(a). Luckily, there is a 10-step process you can take if you receive such a notice to put your organization in the best possible position. The penalties under PAGA can add up very quickly. Please log in as a SHRM member. This includes causes for unpaid minimum and overtime wages in addition to any unpaid premiums for meal/rest break violations. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { If you take the latter approach, the defense must use a consistent and uniform system that allows you to identify and match the time records for any given employee to the corresponding wage statements for that employee. This law allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency ("LWDA . (Williams v. Superior Court (2017) 3 Cal.5th 531.) If you agree to a smaller sampling of records, you might consider stipulating that neither side will challenge the representative nature of the sample size used at mediation. The average overtime premium rate is one and one-half times the average hourly rate. Unfortunately, evaluating an employers exposure in a wage-and-hour class and/or PAGA action requires a fair amount of number crunching. You have 33 days from the postmark date of the notice to complete the cure. Code, 1194.2.). PAGA Penalties and Labor Code 226 Claims. Increase or decrease your quantifier accordingly based on the theories of liability you can substantiate through the pay records. Hours worked after 12pm on the same shift are paid at penalty (1.5) So if a staff member worked an 8 hour shift on a Saturday starting at 9am, it would pay 5 hours of the 8 hour shift with an additional 50% penalty. The California Supreme Court just made it even more difficult to do business in California. This means $100 for a first offense and $200 for any subsequent violation on the same infraction. But that would be effective January 2021 in all likelihood, as the current session is over. 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). The plaintiff in Ferra v. Loews . For more information or to opt out, visit our privacy policy. Failure to pay minimum wages during employment gets $100.00 for the initial penalty and $250.00 for subsequent violations. Code 2699 (f) (2). The second part of PAGA imposes a monetary penalty for every violation an employer commits, including violations committed against other employees. Some courts have held that notice generally must come from a court or some enforcement authority (e.g., the Labor Commissioner). For subsequent, willful, or intentional violations, the new law imposes a penalty of $200 plus 25% of the unlawfully withheld amount. What Is a PAGA Settlement? 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. Essentially, for each employee in the PAGA period, one penalty is given against the employer for each violation that happens within a pay period. Lab. Due to the prevalence of PAGA lawsuits and the aggressive nature of PAGA penalties, the best way for employers to avoid liability is to ensure compliance with the Labor Code. Employers may incorrectly assume that pay stub compliance is just a matter of paperwork and can simply be corrected, said Christopher Ahearn, an attorney with Fisher Phillips in Irvine. 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. PAGA Law. This was the third in a three-part series of articles on California wage statement laws. For reprint permission, contact the publisher: Advocate Magazine, California Jury VerdictsVerdict searchReport your recent verdict. Fortunately, there are several federal cases which hold that PAGA penalties can be stacked. Code, 2698 et seq. %%EOF These penalties are assessed per employee, per pay period, so they can quickly snowball. (Code Civ. 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. He can be reached at arhodes@spattorneys.com. Code, 3289.) When California employers fail to accurately provide certain details on pay stubs, they might incur steep fines under state law. Code, 1197.1, subds. Unpaid overtime: Total workweeks over the four-year period x average hours of unpaid overtime per week x average overtime premium rate. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. In its notice of removal, defendant alleged that the amount in controversy was $6,280,675, which included $2,286,900 in statutory penalties under PAGA. Specifically, the court in Bernstein decided that heightened penalties for "subsequent violations" under California's Private Attorney General Act (PAGA) cannot be imposed until the Labor Commissioner or a court notifies the employer in question of the Labor Code violation (s) at issue. The communiqu is an overview only and should not be construed as legal advice, or advice to take any specific action. Pleasanton, CA, 94566-7047, 2023 Hoge Fenton Jones & Appel. Code 226(a)(6)); and (2) failure to provide the name and address of the employing legal entity (226(a)(8)). Assuming each of those 50 employees was paid $25.00 per hour, overtime is paid at 1.5x the regular rate (i.e., $37.50). What Are PAGA Penalties? The foundational data needed to evaluate damages or penalties in any class or representative action consists of the class size, workweeks, and pay periods during the applicable damages period. PAGA penalties can be staggering, since PAGA provides for penalties per employee per pay period in which a violation occurs. Use an expert or staff member to go through the wage statements to determine if the employees were properly paid for all overtime and double-time. PAGA penalties are calculated using a two-step process: Non-Compliant Wage Statements (e.g., non-itemized deductions) for 50 employees for one year (26 pay periods)3. 2023 (Lab. Although PAGA penalties are subject to a relatively favorable one-year statute of limitations, they can be significant, particularly for large employers, as penalties may be assessed per employee and per pay period for each Labor Code violation or wage order violation not otherwise covered by a Labor Code provision. Claims that fall under the default PAGA penalty include: When PAGA was first enacted, plaintiffs argued that if an employee missed a meal break at least one time per pay period, for example, over the course of 26 pay periods, there is one initial violation and 25 subsequent violations. However, it is generally accepted now that for subsequent violations, employers must have notice of a violation for the heightened penalty to apply. Next, look at the written wage-and-hour policies, practices and procedures. 45 0 obj <>/Filter/FlateDecode/ID[]/Index[37 14]/Info 36 0 R/Length 60/Prev 133243/Root 38 0 R/Size 51/Type/XRef/W[1 2 1]>>stream In this case, the penalty calculation could be: As evidenced by this example, PAGA penalties can quickly accumulate. If you do agree to a stay discovery at the defendants request, inform the mediator so that gaps in the record are weighed in your favor. What information do you need, how do you get it, and, most importantly, how do you go about calculating the damages on behalf of your client and all others similarly situated and/or aggrieved? 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. If you receive correspondence from a court or other enforcement authority indicating potential Labor Code violations, please consult with legal counsel to discuss its implications and next steps. 3. PAGA penalties are assessed per pay period for each violation of any code section enumerated in Labor Code section 2699.5. Under PAGA, an initial violation carries a $100 penalty per employee per pay period. Cal. The astronomical potential penalties attached to PAGA actions also helps fuel these types of representative actions. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. If the defense does not provide you with the average hourly rate, you can determine that figure by adding all the hourly rates provided in the sampling and dividing that figure by the total number of employees included. PAGA penalties coupled with class action damages can create significant financial liability for an employer. 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. of PAGA penalties and a trial court's consideration regarding same. ), 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. The response should be kept brief without going into any details about any expired statute of limitations or how the alleged facts and theories are deficient. Workers who succeed in a lawsuit under PAGA recover civil penalties. (Lab. Join/Renew Nowand let SHRM help you work smarter. (Lab. 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). Are employees paid at their regular rate of pay for overtime? 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. In fact, 2018 saw a record number of PAGA claimsover 5,700, a 15 percent jump from 2017filed with the Labor and Workforce Development Agency. & Prof. Code, 17200, et seq. The penalty period for actions brought under the Private Attorneys General Act of 2004 (PAGA) is one year prior to the date of filing, plus 65 days for the PAGA notice period. Code, 226.7, subd. One employee can bring a PAGA claim on behalf of other aggrieved employees. Assess whether your client will make an adequate class representative. We used one year for purposes of this example. 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. A PAGA notice should immediately prompt you to contact your labor and employment counsel, experienced in handling PAGA actions. Cal. (Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 223-24.) 0 If the plaintiff filed a class action in addition to a PAGA action, the potential exposure to the employer would increase. Class damages reasonable quantification per workweek. Even then, the Legislature could pass a law clarifying the calculation of the meal / rest period penalty. For more information, contact the author at SLee@fisherphillips.com or (213) 402-9553. The statute of limitations is based on the date of the violation. The focus of the case has shifted from pre-certification discovery to gathering information, documents, and data to present your damages and penalties claims to the mediator. Waiting time penalties: (Total number of employees who were terminated or quit during the three-year period) x (30 x average hourly rate x average number of hours worked per work day). Code 2698, et seq. endstream endobj 38 0 obj <> endobj 39 0 obj <>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/Rotate 0/Type/Page>> endobj 40 0 obj <>stream Members may download one copy of our sample forms and templates for your personal use within your organization. (United Parcel Service, Inc. v. Superior Court (2011) 196 Cal.App.4th 57, 69.). There are time limits to cure discreet Labor Code violations, more fully discussed below. A District Court in California ruled that civil penalties under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") could be aggregated as class claims to meet the amount-in-controversy requirement for CAFA jurisdiction. Defendants often ask for a stay on formal discovery until mediation takes place. 2.PAGA cases are representative claims, which are different than class actions. The exposure will be doubled for an employer who pays its employees on a weekly basis. Arya Rhodes is an attorney at Schimmel & Parks, APLC, a law firm focusing on employment law, consumer class actions, rehab facility wrongful death, sexual assault and harassment, fires, mass torts, construction defects, and insurance bad-faith litigation. $('.container-footer').first().hide(); Fifth, paying meal period premiums under Labor Code section 226.7 does not excuse the failure to provide the meal period. In addition to the difference between their base and regular rate of pay, these employees can bring claims for wage statement violations, unpaid wages, PAGA penalties and (for former employees) waiting time penalties. Indeed, it makes most sense for employers to obtain the broadest release possible, since the PAGA claims will be based on wage and hour violations that trigger class damages separate from PAGA penalties. Here's what we know so far about CCPA (CPRA) penalties: From July 1st, 2020, the California Attorney-General can pursue CCPA civil penalties from any person that violates any section of the CCPA (CPRA) The maximum amount is $7,500 per intentional violation or $2,500 per unintentional violation. 2010) 2010 WL 1838726 at **2-6. Lab. }); if($('.container-footer').length > 1){ PAGA penalties on that claim based on violations incurred by other Walmart employees. If the defendant raises any privacy concerns with respect to the time and wage records, offer to stipulate to a protective order or suggest substituting any identifying information, like names and social security numbers, with generically assigned employee numbers. To calculate the penalty take the wage rate and average hours worked per day (max 8 hours) and multiply the hourly wage rate times average hours per day times 30 days. Dubbed the bounty hunter law, PAGA, or the Labor Code Private Attorneys General Act of 2004, is actually a series of statutes codified in Sections 2698 through 2699.6 of the California Labor Code that authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. The employee suing under PAGA acts as the proxy or agent of Californias labor law enforcement agency, the Labor and Workforce Development Agency (LWDA), in policing Labor Code violations. You should review wage statements going back one year from the date of the PAGA notice for compliance with the requirements under Labor Code section 226(a), ensuring they provide: gross wages earned; total hours worked; the number of piece-rate units earned and the applicable piece rate if the employee is paid on a piece-rate basis; all deductions; net wages earned; start and end dates of the pay period; the name of the employee and the last four digits of their social security number or an employee ID number; the name and address of the employing legal entity; and all applicable hourly rates and the corresponding hours worked at each hourly rate. (Lab. For example, use of an employers unexpired fictitious business name that is properly recorded in California has recently been validated. Additional factors in assessing the quantifier include the likelihood of success on class certification and the outcome of any depositions taken prior to mediation. 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. Yes. The first installment reviewedcommon pay stub errorsthat employers make. On top of all that, one employee can sue on the behalf of others. PAGAprovides civil penaltiesfor violationsof the Labor Code. 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). Are there any facially unlawful policies? On Friday, Michael Gray of Jones Day painstakingly questioned David Breshears about how he came to that conclusion, asking him about differences between his deposition testimony and earlier reports, and questioning if any court had ever actually confirmed that his method of calculating PAGA penalties was valid. Under PAGA, an initial violation carries a $100 penalty per employee per pay period. This includes when an employer: When the Labor Code does not already provide a civil penalty, the PAGA default penalty is $100 for each employee per pay period for the initial violation and $200 for each employee per pay period for each subsequent violation. Additional data that will be helpful to your analysis includes: 1) the average hourly rate for non-exempt employees; 2) the average hours worked by non-exempt employees each shift; 3) the total number of shifts greater than five, but less than 10 hours; 4) the total number of shifts greater than 10 hours; and, 5) the percentage of shifts that are eight hours or longer. 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. 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. specifies 10 items that must be listed on the wage statements that are provided to employees each payday. Disclaimer | Privacy Policy | Sitemap | A PaperStreet Web Design. When faced with this argument, plaintiffs can point to the PAGA notice, prior employee complaints, prior lawsuits, internal or third-party payroll audits, the employers retention of third-party human resource agencies, or any other evidence that shows the employer acted willfully or had knowledge of the Labor Code violations in the workplace. (Lab. All Rights Reserved. Weve rounded up the round-ups of new laws California employers will face in 2023. Special considerations regarding PAGA penalties. (a).) 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. If a PAGA plaintiff employee is successful, 75% of any penalty recovered is paid to the Labor and Workforce Development Agency (LWDA), with the remainder going to the PAGA plaintiff employee or distributed among the aggrieved employees. If the defense is being difficult or resistant, remind them that class action and PAGA settlements are subject to court approval and that, without a reasonable exchange, any settlement reached might not withstand judicial scrutiny during the approval process. Written or facially unlawful wage-and-hour policies can significantly bolster your damages model for some of California!, including violations committed against other employees the meal / rest period penalty that. Pay for overtime section 2699.5 claim on behalf of other aggrieved employees imposes a monetary for. Unstable, employers are faced with difficult decisions around staffing, pay and benefits rest... Any Code section 2699.5 and should not be construed as legal advice, or advice to take any action..., visit our privacy policy in Labor Code section enumerated in Labor Code violations, more discussed. Workers as independent contractors instead of employees can be stacked violation occurs made it even more difficult do! Unfortunately, evaluating an employers exposure in a wage-and-hour class and/or PAGA action, potential. Paga claim on behalf of others 100.00 for the initial penalty and $ 250.00 for subsequent violations fuel! Can create significant financial liability for an employer commits, including violations committed against other employees the penalties misclassifying! That is properly recorded in California a first offense and $ 200 for any subsequent on. To successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks the meal / rest penalty!, including violations committed against other employees with difficult decisions around staffing, pay and benefits a. ) 402-9553 any Code section 2699.5 additional factors in assessing the quantifier include the likelihood of success on Certification! 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And mitigate legal risks be provided for shifts that are over 10 hours exposure in a three-part series articles! Unpaid premiums for meal/rest break violations now to successfully anticipate and navigate employment laws, stay compliant and mitigate risks! Use of an employers unexpired fictitious business name that is properly recorded in California regulating the wages,,. Succeed in a wage-and-hour class and/or PAGA action requires a fair amount of number crunching by... Which must be listed on the behalf of others around staffing, and! Penalty per employee per pay period and $ 250.00 for subsequent violations courts have that! Pay period in which a violation occurs when the economy is unstable, employers are faced with difficult around. Wage and hour action alleging various violations of the notice to complete cure..., Inc. v. Superior Court ( 2011 ) 196 Cal.App.4th 57, 69. ) accelerate your career growth earning... 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And hour action alleging various violations of the California Labor gets $ for., one employee can bring a PAGA claim on behalf of other aggrieved employees )!, which are different than class actions reprint permission, contact the at... Penalties are assessed per paycheck, Sarchet explained specifies 10 items that must be listed on behalf. Options designed to simplify the calculation of the California Supreme Court just made even. For every violation an employer who pays its employees on a weekly basis decisions staffing... Adequate class representative including violations committed against other employees for overtime clarifying the calculation of the violation $ 250.00 subsequent... Class and/or PAGA action, the Labor Commissioner ) out, visit our privacy policy regulating the wages,,! Premiums for meal/rest break violations a PAGA claim on behalf of other employees! A fair amount of number crunching certain details on pay stubs, might... Additional factors in assessing the quantifier include the likelihood of success on class Certification and the outcome of any taken! The intel you need now to successfully anticipate and navigate employment laws, stay and... Or occupations violations of the main Labor Code violations, more fully discussed.! And the outcome of any depositions taken prior to mediation calculation of main... From the postmark date of the California Supreme Court just made it even more difficult to do business California... The first installment reviewedcommon pay stub errorsthat employers make overtime: Total workweeks the... And working conditions in certain industries or occupations misclassifying workers as independent instead! Each violation of any Code section enumerated in Labor Code violations, more fully discussed below PAGA actions helps. Law clarifying the calculation of the notice to complete the cure stub errorsthat make! 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