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    « Federal Minimum Wage Increase Takes Effect Today | Main | Review Denied In Belaire-West Landscaping »


    Kevin Norte

    Prior to Arias, it was clear to me that was where the Court was headed. PAGA “simply deputizes an employee to recover a penalty under section 256, which penalty previously was recoverable only by the Labor Commission.” (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 340, fn 6.) “[P]laintiffs seeking civil penalties recoverable by the state [emphasis added] in such suits for violations of any Labor Code provision specified in section 2699.5 must now plead compliance with section 2699.3, subdivision (a)’s ‘administrative procedures’.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 382-383.) From there it was easy to guess that a COurt would see the penalty against the employer was the entire penalty as to the employment pool.

    greedy associate

    Jackson Lewis is telling their clients that this case "increased the potential liability to employers in wage and hour class actions in a decision on a procedural issue involving class certification of wage and penalty claims under the California Labor Code" because the PAGA claims didn't have to be certified. This case did not make new law. PAGA cases have never had to be certified. That was the whole point of the PAGA.

    Kevin Norte

    One thing that is not clear under PAGA is the remedy under which 25% of the penalty is doled out to the unrepresented employee. Does the name plaintiff keep it all or is the plaintiff obliged to distribute it to the unnamed, uncertified, unascertainable current and former (presumably aggrieved) employees? How do we know who is entitled to recover and who is not? Who keeps the residual? How is recovery limited to avoid duplication?

    Furthermore, now suppose there was a class and some opted out, later one of those class members who had opted out might bring a PAGA case based on exactly the same conduct. Defendant, of course, will argue res judicata. Plantiff, under ARIAS/DUNLAP, will presumably argue that he or she has stepped into the shoes of the state. Because the state would not be precluded from bringing an action for civil penalties resulting from Labor Code violations, nor should the PAGA plaintiff be precluded from such an action, if I am interpreting this correctly.


    Anyone know how much the state has recovered through PAGA penalties? I've heard something like $500,000 to date. Given all of the w & l litigation since 2004, doesn't seem like a lot...


    Good question. We have that information in a notebook from a seminar we went to in May. We'll dig it up and put together a post about it.

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