When PAGA—California's Labor Code Private Attorneys General Act of 2004—was first enacted, we knew it would take years to see how it would be applied. Twelve years (and over $30 million in penalties paid to the state) later, we thought we'd have more answers. But many California employers, attorneys, and judges, now all too familiar with PAGA, still are uncertain how to manage and litigate PAGA claims and continue to await guidance.
But we're tired of waiting. And we might be waiting for Godot (since California legislators have those more than 30 million reasons to like the PAGA status quo). Nor can we expect California executives and agencies to assist, since they largely ignore their roles for overseeing and authorizing PAGA claims (as less than 1% of received PAGA notices are even reviewed in practice).
So the joy of addressing the uncertainty of PAGA is left for litigants and courts. Of course, courts can't really be blamed for furthering confusion with inconsistent and contradictory rulings, since one of the few certainties is that the bounty hunter statute simply isn't the California legislature's finest work—meaning only that the statute's text is the source of much PAGA confusion.
But wait no more, and add this to the list of certainties: The California Wage & Hour Series will include "PAGA Primer" posts returning to the basics, starting with the statute, and seeking to defuse PAGA misconceptions. It's time to ask the stupid questions: What does PAGA actually say? When does PAGA create penalties? Does PAGA permit recovery of two penalties for a single violation? Does PAGA create substantive or procedural rights? Does Rule 23's applicability to a PAGA claim vary on a case-by-case basis? Does PAGA exempt claims from manageability requirements? Does a right to a jury trial exist for PAGA claims? Asking stupid questions is the way to avoid stupid answers.
We'll still blog on PAGA developments—including the California legislature's response to the governor's proposed amendments, the California Supreme Court's ruling on the standard for and scope of PAGA discovery, and maybe even a final disposition in a case permitting the United States Supreme Court to weigh in on the Iskanian rule. And we'll not only wait for answers but also take the proactive approach by addressing a series of basic but necessary questions.
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