PAGA, also known as the Private Attorneys General Act of 2004 (Cal. Labor Code § 2698, et seq.) requires workers to give written notice to California’s Labor and Workforce Development Agency, or LWDA, before seeking civil penalties that otherwise could only be recovered by the state of California. A 2018 appellate decision in Brown v. Ralph’s Grocery Company, a case that has been pending since 2009, provides guidance in terms of how much written notice is required in PAGA notice letters, and when workers are required to amend their PAGA notice letters in order to preserve claims that that they discover after the date of their letter.
How much notice is required in a PAGA letter?
First, some background. The California Legislature enacted PAGA in order to allow workers to sue on behalf of the state of California in order to collect penalties that are then shared with the state and other aggrieved workers. Before doing so, workers must give written notice of the alleged Labor Code violations to both the employer and the LWDA and wait for a certain amount of time to pass in order to allow the state and the employer to act. In order to satisfy the exhaustion requirement, PAGA notice letters must describe the “facts and theories” supporting the legal violations alleged. Arias v. Superior Court (2009) 46 Cal.4th 969, 781.
However, PAGA does not tell us how detailed these “facts and theories” need to be. In Williams v. Superior Court (2017) 3 Cal.5th 531, 545-546, the California Supreme Court noted that there is a difference between alleged violations and the facts that support those violations. The Supreme Court also indicated that PAGA does not require “a particular threshold of weightiness” with respect to notice. However, such notice must meet the purposes of the notice requirement, which are to allow the state to decide whether to investigate, and the employer to respond to the allegations. A notice that contains only legal allegations does not serve these purposes.
In Brown, the Second District Court of Appeal relied upon the reasoning of Williams in concluding that in order to meet Section 2699.3’s notice requirements, workers must include in their PAGA letters both alleged violations and facts and theories that support those violations. Thus, mere legal conclusions are not enough: A notice must give sufficient information to the LWDA in order for it to decide whether to investigate the allegations. It must also give employers an opportunity to cure the violations.
Brown also clarifies that workers need not specifically mention Labor Code section 558 in their PAGA notice letters. Section 558 allows workers to recover both unpaid wages and civil penalties under PAGA. Because section 558 provides a remedy for violations of other statutes, as opposed to setting forth substantive rights, workers need not specify a violation of section 558 in their PAGA letters. Rather, workers can proceed with a PAGA claim under section 558 so long as they have given adequate notice of a violation for which section 558 provides a remedy.
Turning to the facts of the case, the Brown court held that it was not sufficient under PAGA for the plaintiff merely to allege that the employer had not properly compensated workers for missing meal and rest periods without providing more information. Thus, she had not properly given notice regarding her claims for missed meal and rest periods under PAGA. However, it was sufficient for the plaintiff to allege that the employer had violated Labor Code section 226(a) by failing to include the name and address of the employer on its wage statements because that allegation included facts that supported the legal conclusions.
When should Plaintiffs amend their PAGA letters?
Another open question under PAGA is whether workers need to amend their PAGA letters to allege violations that either arise or are discovered after their initial letter. A common scenario in which this issue arises is with respect to waiting time penalties under Labor Code sections 201-203. Such penalties only arise after a worker is terminated, and thus may not be present when a worker files their PAGA letter because the worker has not yet been terminated. Other examples include situations in which the workers discover additional Labor Code violations after they file their initial PAGA letter and after they file suit.
Something along those lines happened in Brown. The plaintiff filed two PAGA letters in 2009, but did not include violations of sections 201-203 in her PAGA letter. Nor did she include violations of section 1198. Nevertheless, the plaintiff amended her pleadings in September 2012 to include PAGA claims based on those violations.
The defendant challenged the plaintiff’s amended PAGA claims on the grounds that the 2009 PAGA letters had not mentioned the new claims. In response, the plaintiff argued that her new claims were proper under the doctrines of equitable tolling and the relation back doctrine, among others. The court addressed each of these arguments in turn.
First, the court held that allowing equitable tolling where the plaintiff failed to amend her PAGA letter for years would be inconsistent with the purposes of PAGA’s notice requirements. Such a rule would make it difficult for the LWDA to decide whether to investigate claims, and would require the employer to respond years after the violations occurred. Furthermore, equitable tolling requires good faith and reasonable conduct, which did occur here.
However, the court held that if the plaintiff could show that the new violations rest on the same general set of facts, involve the same injury, and refer to the same instrumentality, she could prevail on her argument that the new claims relate back to 2009 PAGA notice. (The court limited this analysis to whether the later claims relate back to the alleged violations of section 226, which pertain only to wage statements.) The court remanded to the trial court to make that determination.
Ultimately, Brown clarifies several things. First, workers bringing PAGA claims must allege both violations and “facts and theories” in their PAGA letters. Second, workers who discover additional violations not pled in their initial PAGA letters should consider amending their PAGA letters promptly in order to avoid the problems discuss in Brown.
If you have questions about PAGA or your rights in the workplace, please feel free to email inquire@hunterpylelaw.com or call (510) 444-4400.