California’s Private Attorney’s General Act (“PAGA”) has created an extremely friendly litigation environment for employees in California. While the 2021 Ninth Circuit decision in Bernstein v. Virgin Am., Inc., 3 F.4th 1127 (9th Cir. 2021)(Bernstein) was a win for employers on subsequent violation liability, Bernstein’s analysis of the potential extension of California labor regulations to employees of interstate airlines warrants a note of caution. Specifically, an airline or other interstate employer with sufficient connections to the state of California (and especially with no greater connection to any other particular state) may be subject to many significant California wage and hour laws—even when employees are physically working outside the state. PAGA could provide a way to geographically extend the enforcement of California labor laws in these circumstances.
In 2003, California enacted PAGA in response to a concern that the state could not adequately enforce its labor code through its administrative agency amid the rapid expansion of the workforce. PAGA does not create additional obligations on employers but is another way for employees to get into Court. The legislature deputized “aggrieved employees” to act as private attorney generals with the ability to file a lawsuit against their employers for a violation of essentially any section of the California Labor Code, regardless of whether that section carries a private right of action. An...
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