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Plaintiffs Cannot Bring PAGA Claims If They Fail to Give Notice of a Representative Action

In Hamid H. Khan v. Dunn-Edwards Corporation (January 4, 2018), the California Court of Appeal for the Second Appellate District held that the plaintiff failed to comply with required administrative procedures prior to bringing a claim under the California Private Attorneys General Act (“PAGA”) because he failed to provide sufficient notice to the California Labor and Workforce Development Agency (“LWDA”) and the employer that he sought to bring the PAGA claim on behalf of, not only himself, but on behalf of a group of “aggrieved employees.”  Accordingly, based on the Khan decision, plaintiff employees are foreclosed from pursuing PAGA claims against employers if they fail to provide adequate notice of a representative action.

The PAGA provides aggrieved employees with the ability to file suits and recover civil penalties on behalf of themselves and other current or former employees in a representative action against their employers.  Before doing so, the aggrieved employees must comply with administrative procedures and provide written notice of the intent to pursue a PAGA case by providing notice of the claim to the LWDA and the employer.  The employee must state, “the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.”  Labor Code § 2699.3(a)(1)(A). By providing the requisite notice, the employee thereby provides the LWDA with an opportunity to determine whether to investigate the claim further and likewise provides the employer with an opportunity to cure the alleged violations.

In Khan, Plaintiff’s PAGA notice stated: “This correspondence shall constitute written notice under Labor Code § 2699.3 of my claims against my former employer. . .” (emphasis added). Plaintiff made no reference to any other current or former employees, and thus failed to provide the LWDA and the employer with sufficient notice of the extent of his claim.

Finally, the court also barred the plaintiff from continuing with his PAGA claim on an individual basis, opining that: “Permitting pursuit of only individual penalties appears inconsistent with PAGA’s objectives.” Plaintiff filed an appeal with the California Supreme Court on February 13, 2018, Case No. S246979.  

Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 68

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About this Author

Melissa Yen, Labor and Employment Litigator, Jackson Lewis, Los Angeles Law Firm
Associate

Melissa L. Yen is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. She represents employers in all aspects of labor and employment litigation, including wrongful termination, discrimination, harassment, retaliation, and wage and hour matters in state and federal court as well as arbitration.

Ms. Yen regularly advises employers on employment-related issues, including high-risk terminations, employee discipline, lay-offs, disability accommodations, leaves of absence, employment policies and wage and...

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Principal

Hazel U. Poei is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. Her practice is focused on single-plaintiff, multi-plaintiff, and class action employment litigation in state and federal courts.

Ms. Poei has also handled arbitration proceedings and matters before administrative agencies such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. Ms. Poei has also prepared briefing to the United States Supreme Court.

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