In a decision that seems like to be reviewed by the California Supreme Court or rejected by other California Courts of Appeal, one of California’s appellate courts has issued a perplexing decision holding that even employees whose claims are time-barred can file representative actions under California’s Private Attorneys General Act (“PAGA”).

In Gina Johnson v. Maxim Healthcare Services, Inc., the Fourth Appellate District held that the plaintiff could pursue PAGA claims on behalf of other employees even though her own claims were barred by the statute of limitations.

In reaching this decision, the Court relied upon the California Supreme Court’s 2020 decision in Kim v. Reins, which held that an individual who had resolved his own claims could still pursue PAGA claims on behalf of others.

While Kim v. Reins left many legal pundits scratching their heads as it seemed to fly in the face of basic concepts of standing, they could perhaps reconcile the conclusion with the fact that at least the plaintiff in that action had claims within the statutory period. That is not so in Johnson.

In fact, Johnson suggests that even persons who have not worked for an employer for many years could somehow still be permitted to file a PAGA suit on behalf of others.

Could an employee who last worked for an employer 5 years ago file a PAGA action? How about 10 years ago? Or 20?

The holding in Johnson suggests that this appellate panel would conclude that would be permissible. And that is precisely why the decision is likely to be reviewed by the California Supreme Court or ignored by other California appellate courts.

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