The Private Attorneys General Act, or PAGA, was designed by state legislators offering financial incentives to individuals seeking to enforce state labor laws. When SB 796 passed in 2003, the State of California did not have sufficient resources to keep up with the demand of the state’s workforce. As a result, SB 796, or PAGA, allowed disgruntled workers to act as a private attorney general in allowing them to collect civil penalties for workplace violations of the state’s Labor Code, which were previously only recoverable by the Labor Commissioner.

A Brief History of the Law

In the early 2000’s, the California State Assembly and Employment Committee held hearings about the efficiency of the enforcement of wage and hour laws by the State Department of Industrial Relations. The Senate Rules Committee reported that the Legislature appropriated over $40 million dollars to the State Labor Commission for the enforcement of over 300 laws, and that the Department of Industrial relations was the largest state labor law enforcement agency in the country. Consequently, SB 796, or the “PAGA Bill” was introduced to augment civil enforcement efforts by allowing employees to sue employees for civil penalties.

The PAGA Bill set to allow disgruntled workers to bring forth civil actions to obtain penalties. Penalties obtained through these actions would be allocated to the General Fund (50%), the employer for education (25%), and the disgruntled employee (25%). Additionally, disgruntled employees would have the risk to seek compensation for attorney’s fees and under certain circumstances, penalties. For violations of the Labor Code in which no civil penalty has yet been established, the bill would set civil penalties for the employer’s failure to abide by the Labor and Workplace Development Agency.

The Private Attorneys General Act’s (PAGA’s) Basic Framework

In accordance with the California Labor Code §2699(a), PAGA deputizes current and former employees in the state to sue to recover civil penalties on behalf of the state. To file a successful claim, the disgruntled employee will only need to demonstrate that the violation occurred, not that the employee him or herself was directly affected by the violation. The statutory timeframe to file a claim under PAGA is one year.

There are three categories of violations under PAGA, and each has its own penalty.

1. Category One: Violations of Labor Code Provisions Specifically Listed under Labor Code Code Code §2699.5

There are over 150 different types of violations listed in this first category. Before a claim can be filed based on Category One, the claimant must satisfy certain notice requirements. As a result of the low standard for sufficiency, PAGA lawsuits are rarely dismissed. The claimant must provide a written notice describing the alleged violations, including the facts that support the allegations. After receiving the claim, if the Labor & Workforce Development Agency declines to investigate the case or fails to respond, the claimant can proceed to file the lawsuit seeking PAGA penalties.

2. Category Two: Health and Safety Violations Listed Under Labor Code §6300

In addition to sending a claim notice to the Labor & Workforce Development Agency and the accused employer, the worker will also need to file a health and safety based notice with the Division of Occupational Safety and Health. This agency will then decide as to whether to investigate the claim or not. If the claim is investigated and a citation is issued, the worker cannot begin civil action under PAGA. On the other hand, if the citation is not issued, then the disgruntled worker can appeal to the Superior Court for an order directing the agency to file a citation.

3. Category Three: All Other Labor Code Violations

This third category covers all other Labor Code violations other than those already covered by the first two categories. This can include wage violations or the lack of obtaining the employer’s legal name and address.

Kirby v. CVS Pharmacy, Inc.

In 2016, the state Supreme Court made a decision by issuing an opinion on Kirby v. CVS Pharmacy, Inc. This decision clarified ambiguities in the obligations of an employer to provide employees with suitable seating. The issue was a provision in the state’s Wage Orders, which demand employers to provide their workers with suitable seats when the work reasonably allows for the use of seats. The Supreme Court held that the provision of “nature of work” means tasks must be performed in a certain location, where the worker claims to have the right to a suitable seat, as opposed to a holistic approach. Additionally, the court adopted a totality of the circumstances assessment to determine whether the location reasonably allows for suitable seating.

Complying With the State’s Suitable Seating Requirements

Employers in the State of California could be required to provide their employees seating, including customer-facing employees. The standard of suitable dating, however, depends on particular workplace situations.

Although employers will generally want their workers to look approachable, under the state’s wage orders, workers must be provided with suitable seats when the nature of the work allows for it. Even if the nature of the work demands standing, sufficient seating should be placed in a reasonable proximity of the work area.

Amusement Park Employees’ Right to Have a Seat

The California Labor Code §§2698 – 2699.5 provides that disgruntled workers have the right to file claims to recover civil penalties on behalf of themselves, other workers, and state Labor Code violations. Amusement park workers who claim to have been unreasonably denied “suitable seating” have a right to sue for civil penalties. Workers of amusement parks, including parking lot attendants, cashiers, attraction clerks, sales clerks, food operation clerks, and merchandise clerks who work in a standing position and not provided adequate seating can file a lawsuit.

Obtain the Support of a Proficient Litigator

PAGA, codified in the state Labor Code §2698 allows a worker to recover civil penalties for violations of the Labor Code committed against the, or other workers by bringing action against the employer on behalf of the state. If you are an amusement park worker in one of California’s many theme parks, you can recover civil penalties by filing a claim against your employer. Seek legal counsel from a proficient litigator who can help you understand your rights and legal options.

The experienced litigators at SANFORD A. KASSEL, A Professional Law Corporation have more than 50 years of combined legal experience. The trial attorneys are well respected in the legal community, and they have successfully represented hundreds of California workers who have been wronged by their employers. 

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