In California wage-and-hour litigation, few statutes have generated more uncertainty than the Private Attorneys General Act of 2004. Even after a legislative overhaul in 2024, courts are still wrestling with fundamental procedural and standing questions that shape employer risk.
After PAGA deputized employees to act as private attorneys general, allowing them to file lawsuits on behalf of other employees without the need to certify a class, California employers have endured a 22-year wave of often massive lawsuits.
Even minor purported violations can balloon into high exposure representative actions because PAGA allows employees to pursue penalties on behalf of all “aggrieved employees,” creating an in terrorem effect that has led to frequent, high-dollar settlements.
Some employers responded by implementing arbitration agreements extending to PAGA claims. After the US Supreme Court’s 2022 ruling in Viking River Cruises v. Moriana and the California Supreme Court’s 2024 decision in Adolph v. Uber Technologies, California courts generally compel arbitration of an individual’s own PAGA claims and stay the non-individual claims.
The plaintiffs’ bar began framing their PAGA litigations as “headless” because an employee might lose standing to pursue non-individual PAGA claims if the arbitrator found that the employee didn’t suffer any Labor Code violations. In such claims, the individual plaintiffs weren’t seeking relief for themselves, but on behalf of the...
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