100 Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) Seyfarth Shaw LLP | www.seyfarth.com • Changes to the structure of available civil penalties, including penalty caps for employers who take reasonable steps for compliance, limitations on when the $200 “subsequent violation” penalty is available, and prohibiting derivative penalties.488 • New cure provisions allowing employers to cure additional violations and establishing new mechanisms for early resolution of claims that have been cured.489 • Allowing a plaintiff to seek injunctive relief under PAGA.490 The reforms or “New PAGA” apply to all PAGA claims where the PAGA authorization letter was submitted to the LWDA on or after June 19, 2024.491 C. Requirement to Exhaust Administrative Remedies Before a PAGA plaintiff can sue, they must provide written notice to the employer and the LWDA of the particular Labor Code violation(s) for possible investigation. The notice must contain “the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.”492 To allow the PAGA plaintiff to bring a claim on behalf of other employees, the notice need not refer to “other employees;” however, it cannot use words such as “my” that would suggest the claim applies solely to the plaintiff.493 Failure to comply with this notice requirement within one year of the violation bars the suit.494 This administrative exhaustion requirement is not a mere formality. 488 Lab. Code § 2699(g)–(i). 489 Lab. Code § 2699.3(c)(2). 490 Lab. Code § 2699(e)(1). 491 Lab. Code § 2699(v). 492 Lab. Code § 2699.3. 493 Compare Santos v. El Guapos Tacos, LLC, 72 Cal. App. 5th 363, 372 (2021) (“We do not see how a general reference to ‘a group of others’ or to ‘other aggrieved employees’ is necessary to inform the LWDA or the employer of the representative nature of a PAGA claim. While we appreciate that uniquely individual claims would not satisfy the statute, a prefiling notice is not necessarily deficient merely because a plaintiff fails to state that she is bringing her PAGA claim on behalf of herself and others.”), with Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804, 809 (2018) (“Because his notice expressly applied only to him, it failed to give the Labor and Workforce Development Agency an adequate opportunity to decide whether to allocate resources to investigate [the plaintiff’s] representative action.” Accordingly, the plaintiff “failed to give fair notice of the individuals involved, he failed to comply with the administrative requirement, and the trial court properly granted summary judgment.”). In Khan, the plaintiff’s notice was deficient for purposes of bringing claims on behalf of other employees because it repeatedly used the word “my,” suggesting that the asserted claims were limited to just the plaintiff and not other employees. See Khan, 19 Cal. App. 5th at 807. See also Ibarra v. Chuy & Sons Labor, Inc., 102 Cal. App. 5th 874 (2024) (Concluding PAGA notice sufficiently alleged Labor Code violations against four named defendants and sufficiently identified the aggrieved employees under Labor Code section 2699.3(a)(1)(A); “Significantly, the statute does not specify that ‘aggrieved employees’ be defined in a particular way.”) 494 Moreno v. Autozone, Inc., 2007 WL 1650942, at *4-10 (N.D. Cal. June 5, 2007) (employee who filed lawsuit within one year, but failed to exhaust administrative remedies until more than one year after leaving employment was time-barred from asserting PAGA claims). However, the Court of Appeal has held held that an employee whose own individual claim is time-barred may still pursue a representative claim under PAGA on behalf of other allegedly aggrieved employees. Johnson v. Maxim Healthcare Services, Inc., 66 Cal. App. 5th 924, 929 (2021) (“the main issue posed by the parties on appeal is whether an employee, whose individual claim is time-barred, may still pursue a representative claim under PAGA. Under Kim [v. Reins], 9 Cal. 5th 73, we conclude the answer is yes”; “Johnson alleged she is employed by Maxim and that she personally suffered at least one Labor Code violation on which the PAGA claim is based. … The fact that Johnson's individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip Johnson of her
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