How Much Notice is Required Under PAGA? Ninth Circuit Provides Guidance in Unpublished Decision

This month in an unpublished opinion in Green v. Bank of America, No. 13-56023 (9th Cir. Oct. 13, 2015), the Ninth Circuit clarified the standard for exhaustion of administrative remedies under the California Private Attorneys’ General Act (PAGA). The plaintiffs are now petitioning the court to have this decision published, so that the PAGA notice standard becomes the law of the Circuit.

Before bringing a lawsuit under PAGA, workers must give written notice to the employer and the California Labor and Workforce Development Agency (LWDA) of the specific provisions of the Labor Code that have been violated. (Cal. Lab. Code § 2699.3(a)(1)). Currently, there is no set standard for courts to use in evaluating whether a plaintiff’s letter provides sufficient notice to the employer and the LWDA to exhaust their administrative remedies. Moreover, workers do not have clear guidelines as to what and how much detail their notice must contain.

The Ninth Circuit in Green held that the LWDA notice is sufficient so long as it contains: (1) basic facts about the violations alleged, (2) the specific Labor Code statute violated and (3) specific identification of the employees that were harmed.

If this decision is published, courts will have a clear standard by which to judge the sufficiency of PAGA notices, and employee plaintiffs will have simple, judicially-created guidelines to assist in drafting proper notice so that they may bring PAGA claims.

In Green, Bank of America (BofA) tellers sued BofA for failing to provide them seating as required under California law. The plaintiffs gave written notice of their claims to both BofA and the LWDA. BofA challenged the sufficiency of the notice. The district court ruled in favor of BofA. The Ninth Circuit reversed the ruling, finding that the plaintiffs’ LWDA letter provided sufficient notice under PAGA.