Kelly A. Knight is an attorney and mediator based in Los Angeles, CAlifornia. He handles matters throughout California.

PAGA plaintiffs may sue on behalf of all other employees who have suffered violations of the Labor Code even if the PAGA plaintiff did not suffer those violations

The Labor Code Private Attorneys General Act of 2004, Labor Code section 2698 et seq. (“PAGA”), allows private citizens who are “aggrieved employees” to bring an enforcement action on behalf of other aggrieved employees in a representative capacity to enforce the Labor Code in the workplace. In PAGA actions, the State of California is the real party in interest who has deputized the employee to act as a private attorney general.

In non-PAGA wage-and-hour class actions,  class representatives generally must have, among other things, both standing to sue (usually meaning that the class representative must have suffered injury) and claims typical of the class of persons for whom they seek permission to have the court certify the case as a class action.

But what about in PAGA representative actions? Must a PAGA plaintiff have suffered each violation for which they seek a remedy on behalf of other aggrieved employees? Or may the PAGA plaintiff sue on behalf of all employees aggrieved by Labor Code violations even if the PAGA plaintiff had not personally suffered that violation? For example, if a PAGA plaintiff was denied rest periods but never worked one minute of overtime, is the PAGA plaintiff limited to enforcing rest-period laws, or may that plaintiff also represent all employees who were denied overtime compensation, even though the plaintiff was never personally entitled to or denied overtime compensation? 

The Sixth District Court of Appeal gave us the answer in Huff v. Securitas Security Services USA, Inc., 23 Cal. App. 5th 745 (May 23, 2018), review denied (Aug. 8, 2018), holding that PAGA plaintiffs may sue on behalf of all other employees who have suffered violations of the Labor Code even if the PAGA plaintiff did not suffer those violations.

Here’s all you need for the TLDR version:

This case presents the question of whether a plaintiff who brings a representative action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698, et seq.) may seek penalties not only for the Labor Code violation that affected him or her, but also for different violations that affected other employees. The trial court granted plaintiff Forrest Huff a new trial, reasoning that Huff’s failure to prove he was personally affected by one of the multiple Labor Code violations alleged in his complaint did not preclude his action under PAGA. As we will explain, we conclude that PAGA allows an “aggrieved employee” ––a person affected by at least one Labor Code violation committed by an employer––to pursue penalties for all the Labor Code violations committed by that employer. We will therefore affirm the order granting a new trial.

Huff, 23 Cal. App. 5th at 750-51. Read on for more.

In Huff, the plaintiff Huff worked as a security guard for Securitas for about a year. He resigned his employment after being removed from an assignment. Two months later, he filed a civil action alleging violations of Labor Code section 201, 201.3, 202, and 204, all of which deal with timely payment of wages both during employment and at termination of employment. See id. at 751.

After a first phase of bench trial, which involved a sampling of twenty employees to determine certain dispute issues, the trial court granted a motion for judgment on the 201.3 claim. The trial court found that Huff was not a temporary services employee and therefore had no standing to sue for violations of Labor Code section 201.3, under which employers are required to pay temporary employees employed fewer than ninety days on a weekly basis. The trial court also ruled that Huff had no standing to pursue civil penalties under PAGA for other employees who were affected by violations of section 201.3. Id. at 751-52.

Huff moved for new trial on grounds of error of law, which the trial court granted. Since the PAGA allows an aggrieved employee to pursue penalties on behalf of other aggrieved employees, and since an “aggrieved employee” is someone who suffered “one or more of the alleged violations” of the Labor Code for which penalties are sought, the trial court ruled that the text of the statute and statutory definitions support that if Huff could show he was affected by at least one Labor Code violation, he could pursue penalties on behalf of other employees for additional violations. Id. at 752.

Securitas appealed, and the Court of Appeal affirmed. 

The Court of Appeal started by reciting the purpose and nature of PAGA, largely as discussed by the Cal. Supremes in Iskanian: PAGA was enacted to allow private parties to sue for civil penalties for violations of the Labor Code in a type of qui tam action as a proxy of the state labor enforcement agencies. See id. at 753. The purpose of PAGA is not to recover damages or restitution, but to deputize private citizens as private attorneys general to enforce the Labor Code. Id. A PAGA action “is fundamentally a law enforcement action.” Id.

Next, the statute is clear that any penalties recoverable by a state agency for violation of the Labor Code may be sought by an “aggrieved employee” in a PAGA action. Id. at 754. Labor Code section 2699(c) expressly defines “aggrieved employee” as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Id. (emphasis added).

The Huff court held that the express statutory definition is dispositive: an aggrieved employee may pursue any and all civil penalties for Labor Code violations so long as the employee suffered just one (or more) of them. Id.

The employer argued that direct standing via personally suffering the same violation is required, pointing to certain statements from the legislative-history record. See id. at 754-755 (quoting a bill-sponsor statement and other committee statements about the bill). And the employer argued that there is authority for courts to consider legislative intent even when the statutory language is clear. See id. at 755.

The Court of Appeal agreed that while courts are precluded from considering legislative history where the plain meaning of the statute is clear, “the plain meaning rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose.” Id. But a court may consider legislative history in that circumstance “only to confirm the interpretation already apparent from the plain language, not to advance an alternative meaning.” Id.

Accordingly, the plain meaning of the statute was dispositive, and the Huff court rejected the employer’s argument:

Even assuming it is appropriate to consider legislative history here, that would not change our conclusion because none of the purported expressions of intent relied on by Securitas made its way into the statute. The proposition that PAGA allows an employee to pursue penalties only for the type of violation he or she has suffered is directly at odds with the provision that an action may be brought by an employee against whom “one or more” of the alleged violations was committed. Legislative history, even when appropriately considered, cannot be used to contradict language that the Legislature decided to include in the statute. (An Independent Home Support Service, Inc. v. Superior Court (2006) 145 Cal.App.4th 1418, 1437, 52 Cal.Rptr.3d 562.) Had the Legislature intended to limit the recovery of a PAGA plaintiff suing in a representative capacity to only the penalties for employees affected by the same Labor Code violation as the plaintiff, it would have said so in the statute. Indeed, the Legislature did make such a distinction in section 2699, subdivision (h), which prohibits an employee from bringing a PAGA claim when state authorities have already taken action against an employer for the same violation: “No action may be brought under this section by an aggrieved employee if the agency or any of its departments, divisions, commissions, boards, agencies, or employees, on the same facts and theories, cites a person within the timeframes set forth in Section 2699.3 for a violation of the same section or sections of the Labor Code under which the aggrieved employee is attempting to recover a civil penalty on behalf of himself or herself ....” We find it significant that the Legislature did not use similar limiting language regarding what violations can be pursued by an aggrieved employee when, as in this case, state authorities do not take enforcement action.

Further, the Huff court discussed that the employer’s argument is contrary to the purpose of the PAGA as expressed in the legislative history as a whole. Since the very purpose of the PAGA is to “solve the problem of inadequate state enforcement resources by deputizing private citizens to pursue violators,” and “[g]iven the goal of achieving maximum compliance with state labor laws, it would make little sense to prevent a PAGA plaintiff (who is simply a proxy for state enforcement authorities) from seeking penalties for all the violations an employer committed.” Id. at 756.

Additionally, the Huff court noted that the nature of a PAGA claim being a form of qui tam proceeding also cut against the employer’s argument because “traditional standing requirements do not necessarily apply to qui tam actions since the plaintiff is acting on behalf of the government.” Id. at 757. Accordingly, “not being injured by a particular statutory violation presents no bar to a plaintiff pursuing penalties for that violation.” Id. PAGA’s requirement that a plaintiff need only have been employed by the same employer and suffered “one or more” of the alleged violations “strikes a reasonable balance, requiring a plaintiff to have some connection to the employer’s unlawful practices, while also advancing the state’s interest in vigorous enforcement.” Id.

Addressing the employer’s familiar policy argument about opening the floodgates, the Huff court also discussed that the very purpose of the PAGA is to incentivize pursuit of PAGA penalties as a way to enforce the Labor Code:

The other consequences Securitas characterizes as absurd are that plaintiffs will be incentivized to pursue penalties for Labor Code violations that affected other employees, and will be able to collect a portion of the penalties imposed for those violations. Far from absurd, those consequences are precisely what the Legislature intended when it enacted PAGA as a way to encourage private parties to pursue Labor Code violations, relieving pressure on overburdened state agencies and achieving maximum compliance with labor laws. The trial court correctly found that so long as Huff was affected by at least one of the Labor Code violations alleged in the complaint, he can recover penalties for all the violations he proves.

Id. at 761.

The Huff court affirmed the trial court’s grant of the new-trial motion; the California Supreme Court denied review on August 8, 2018.

The result is clear: unless the law is changed, the scope of the PAGA is much broader than many thought it to be before. A single employee who suffered at least one Labor Code violation may bring a PAGA action on behalf of all other employees who have suffered any Labor Code violation falling under the PAGA umbrella (which is a large majority of Labor Code provisions, although the PAGA does exempt some).

One question remaining is how to square the Huff opinion with the very recent Brown v. Ralphs Grocery Co., 2018 WL 5629874 (Cal. Ct. App. 2d Dist. (Oct. 31, 2018)). In that case, the appellate court upheld the trial court’s grant of the employer’s motion for judgment on the pleadings on grounds that the PAGA plaintiff did not sufficiently allege “facts and theories” to support the alleged violations and therefore failed to satisfy Labor Code section 2699.3(a)(1)(A) (which requires a pre-filing notice setting forth “the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation”). It appears that a PAGA plaintiff would have trouble setting forth sufficient facts and theories under Brown that would allow the plaintiff to enforce violations of Labor Code provisions that the plaintiff does not know about at the time the pre-filing exhaustion letter is sent.

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