Employer Perspective: PAGA 15 Years Later
By Glenn A. Danas
Glenn Danas is a partner at Robins Kaplan LLP, based in its Los Angeles office. Mr. Danas focuses on appeals and major motions, and has substantial experience litigating consumer and employment class actions and PAGA actions. Mr. Danas has argued dozens of appeals in the state and federal appellate courts, including Iskanian v. CLS Transportation Services, McGill v. Citibank, and Williams v. Superior Court (Marshalls), all in the California Supreme Court. Mr. Danas was named one of the Top 100 Attorneys in California in 2017 by the Daily Journal, and received a California Lawyer Attorney of the Year (CLAY) award in 2015 for his work on Iskanian.
Since its initial passage roughly 15 years ago, the Private Attorneys General Act of 2004 (PAGA)1 has played an increasingly important role in California’s enforcement of the Labor Code. A close review of PAGA’s amendments, case law interpreting the Act, and the data show that PAGA is necessary as a law enforcement tool, and that claims of its being "out of control" are unfounded. Indeed, these sorts of criticisms have been lodged since PAGA was first enacted, largely unchanging, despite the Legislature’s and the courts’ responses to PAGA. Moreover, many of the criticisms of PAGA seem to be that it will accomplish the Legislature’s goals of remediating and deterring widespread Labor Code violations. However, as district court judge David O. Carter noted in a 2011 PAGA suit, "The Court is not required to withhold the power of the PAGA statute simply because Defendant fears its potential power."2
The problem that PAGA was meant to address was that the California economy was continuing to grow exponentially, while the state’s ability to police its labor laws was falling further behind with each passing year. To put into perspective how dire the problem of under-enforcement of the state’s labor laws had been, a U.S. Department of Labor study in 2003 of Los Angeles’s garment industry, which employs over 100,000 workers, estimated the existence of 33,000 "serious and ongoing wage violations by the city’s garment industry employers," but California’s Department of Industrial Relations was issuing fewer than 100 wage citations per year for all industries throughout the state.3 Against this backdrop, the California Legislature, under its historic police powers to enforce laws regarding "wages, hours, and other terms of employment,"4 determined that supplementing the state’s enforcement efforts by deputizing employees who had been subject to alleged Labor Code violations was critical for the state to have any hope of keeping up.