Defective PAGA Notice May Invalidate PAGA Claims

Apr 27, 2018

By Vanessa Willis, The Maloney Firm, APC

Under the Labor Code Private Attorneys General Act of 2004 (PAGA), an employee is required to provide written notice to the employer and the Labor and Workforce Development Agency (LWDA) before filing a lawsuit. The purpose of this notice requirement is to provide the LWDA with the opportunity to decide whether to investigate a case before an employee may file a civil lawsuit on his/her own.

In Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, a former employee alleged that his employer failed to pay final wages immediately upon termination, and that his final paystub was inaccurate. He filed a suit on behalf of himself and other employees who had been similarly situated. However, his PAGA notice to LWDA and to the employer referred only to his individual claims and made no mention of any other Labor Code violations; moreover, it did not reference any other current or former employees besides himself.

The court granted summary judgment in favor of the employer in a PAGA lawsuit on the grounds that the employee failed to provide a legally sufficient PAGA notice. The Court of Appeal affirmed this decision in January 2018. The Court of Appeal held that the employee’s PAGA notice was legally inadequate because the employee had brought a representative PAGA claim but his notice referred only to the plaintiff himself.

This case represents a procedural victory for employers and stresses the importance of reviewing PAGA notices for accuracy. Recently, courts have been strictly applying the PAGA notice requirements set forth in the statute as a mandatory procedural prerequisite. Employers (and their counsel) should carefully review any PAGA letters to see whether any similar inadequacies may potentially invalidate PAGA claims.

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