Kinder, gentler PAGA might be in the works

The Private Attorneys General Act (PAGA) is kind of like Godzilla. It arose as an artificial nuclearization of our labor code and then kept growing to obtain powers that weren’t fully imagined or understood at the start. By its terms, it’s supposed to allow cases—and the bounty that comes from them—to transfer to state labor enforcement entities. In practice it does not, but rather creates the specter of seven-figure liability for the simplest labor code violation. It is not only an individual remedy, but also one that can be raised on behalf of every single employee of an employer. Nor is the employee representative’s complaint limited to wrongs done to that employee. Rather, he can sue over every violation in the labor code, as long as somebody in the company was affected.

Can you limit its scope in arbitration, the way you can a class action? Nope, no matter what your agreement with an individual employee says, he or she cannot waive the rights of the attorney general. What if the acting private attorney general doesn’t meet the usual common-sense standards required of a class representative? No such requirements exist under PAGA because it isn’t a class action. Can a trial court decide a PAGA claim is simply too unwieldy to be manageable at trial? No, that isn’t in the judicial toolbox. If you can think of another way in which PAGA might be expanded, it’s a good bet the courts would approve it under the solid doctrine that remedial statutes are to be read broadly to achieve their salutary effect.

If you think that’s going too far, the court has a simple answer: Go talk to Sacramento. That’s what’s happening now.