Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) 99 • Violations of Labor Code provisions that merely require notice, posting, agency reporting, or filing of documents with a state agency are now exempt from prosecution by aggrieved employees. An exception to this exemption was carved out for “mandatory payroll or workplace injury reporting.”481 • All settlements in which penalties are paid must now be judicially approved.482 • The court now may reduce the amount of civil penalties if, under the circumstances, the penalties otherwise would be “unjust, arbitrary and oppressive, or confiscatory.”483 • Before filing suit, a PAGA plaintiff must exhaust an administrative remedies procedure that involves providing written notice of the particular Labor Code violation, containing “the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation,” to the employer and the LWDA for possible investigation.484 B. 2024 Reforms— Enactment of “New PAGA” In June 2024, following an agreement reached between legislative leaders and business and labor groups, the most substamtive changes to PAGA in its 20-year history were made by the California legislature. The changes made by AB 2288 and SB 92 included numerous provisions that benefit California employers. These significant reforms included: • A plaintiff must personally experience each of the Labor Code violations they are seeking to pursue on a representative basis.485 • A plaintiff must experience their individual Labor Code violation(s) within the one-year statute of limitations.486 • PAGA’s manageability requirement was codified inasmuch as a court “may limit the evidence to be presented at trial or otherwise limit the scope of any claim filed pursuant to this part to ensure that claim can be effectively tried.”487 481 Lab. Code § 2699(k)(2). 482 Yet, a trial court’s approval of a PAGA settlement is subject to appellate review. For instance, the Court of Appeal has reversed a judgment approving a PAGA settlement when the trial court failed to consider the fairness of the settlement. E.g., Moniz v. Adecco USA, Inc., 72 Cal. App. 5th 56, 88–89 (2021) (reversing judgment; trial court abused its discretion by approving PAGA settlement with “disproportionate allocation of civil penalties” between two groups of employees when its approval order did not “assess[] the allocation and conclude[] it was fair”). 483 Lab. Code § 2699(e)(2). 484 Lab. Code § 2699.3. 485 Lab. Code § 2699(c)(1). 486 Id. 487 Lab. Code § 2699(p).
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