by Michael Kun

As we have mentioned previously on thisblog, the latest wave of wage-hour class actions to hit California employers is based on a claim that employees were not provided "suitable seating" under an obscure provision of California's Wage Orders.  To avoid having these cases removed to federal court,and to avoid the burden of establishing the elements for class certification, many plaintiffs' counsel have taken to filing these lawsuits not as class actions, but as representative actions under California's Private Attorneys General Act ("PAGA").

PAGA -- sometimes referred to as the "Bounty Hunter Law" or the "Sue Your Boss Law" -- allows a single employee to pursue claims on behalf of all "aggrieved employees," with potential recovery of up to $100 per employee for the first violation and $200 per employee for each subsequent violation.  The potential recovery can be enormous, and a plaintiff need not certify a class.

The constitutionality of PAGA has long been a matter of concern and dispute.  We and other defense counsel often raise constitutionality defenses to PAGA claims and raise those arguments at various stages of the cases.  Unfortunately, judges rarely take interest.

Los Angeles Superior Court Judge Daniel Buckley apparently has seized on this issue and has articulated his intention to dismiss a PAGA seating case against Whole Foods Market on the grounds that PAGA is unconstitutional.  He appears to be one of the first judges, if not the first, to make such a ruling about PAGA. 

Assuming that Judge Buckley issues that ruling, it is all but certain that plaintiff's counsel will appeal.  The case will bear watching because a ruling by the Court of Appeal or, eventually, the California Supreme Court striking down PAGA on constitutionality grounds could shut down all claims under PAGA.  While that would not spell the end of wage-hour class actions, it would close off one of the avenues often relied upon by plaitniffs' counsel to increase the potential exposure in a case for settlement purposes.  And it may force plaitniffs to bring wage-hour claims as potential class actions, which would not only increase the likelihood of removal to federal court, but require plaintiffs to carry a significant burden in convincing a court to certify a class.

Back to Wage and Hour Defense Blog Blog

Search This Blog

Blog Editors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Wage and Hour Defense Blog posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.