Empowering an employee to serve as Private Attorney General

Q. I WANT to file a wage claim against my employer for unpaid overtime hours and missed breaks. Some of my fellow employees, who also have unpaid overtime and missed breaks, want to file with me but they are afraid of being fired if they complain. Is there a way that I can claim wages on their behalf so they don’t have to?
A. Yes, there is. You may be able to file a claim not only for yourself, but also on behalf of your fellow employees who experienced the same labor violations. The mechanism provided under California law is called the Private Attorney General Act (PAGA).
Generally, only the state has authority to fine law breakers. However, PAGA authorizes employees to bring a lawsuit “on behalf of themselves and others” on any violation of the California Labor Code, thus making a private citizen a “proxy or agent” of the state and allowing the employee to step into the shoes of California’s Labor Commissioner to recover civil penalties for the employer’s Labor Code violations. These violations may include not paying overtime, not providing meal and rest periods, misclassifying employees, making illegal deductions from employees’ pay, and not providing legally correct pay stubs to employees.
Even though the PAGA representative is seeking “civil penalties,” the representative is allowed to recover the actual unpaid wages as part of the civil penalty under PAGA. In this situation, the unpaid wages recovered will all go to the affected employees. On the other hand, the civil penalties recovered in a PAGA action are distributed seventy-five percent to the Labor Commissioner’s office and twenty-five percent to the aggrieved employees.
The PAGA representative can also recover penalties for missed meal and rest breaks under PAGA on behalf of other aggrieved employees.
Despite an increasing trend towards the use of Arbitration Agreements in employment, aggrieved employees, with the help of their employment attorneys, can still collectively pursue remedies for themselves and fellow employees under PAGA. No less than the California Supreme Court has held that a PAGA claim cannot be waived as part of an individual arbitration agreement. The Court reasoned that a PAGA action is essentially an action where a private person sues the law-breaking employer on behalf of the State. The PAGA claim, therefore, is not something the employer needs to resolve with the employee. It is a claim it needs to resolve with the state, which did not sign that arbitration agreement.
Finally, an aggrieved employee who sues under PAGA to recover unpaid wages and payment for missed meal and rest breaks may recover attorneys’ fees. This provision is good news, particularly for low-income workers suing employers who can afford to pay attorneys and litigation costs.
Often, employees who want to assert their rights at work may feel like they’re David going up against Goliath. However, they do not need to fight the battle all by themselves. In fact, they don’t need to fight the battle themselves. All that’s needed is an employee willing to stand up for the rights of the many. Oftentimes, all it takes is one. And that one may make all the difference.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.