You may have heard recently that a PAGA lawsuit is a continuing risk for California employers. What is PAGA and why is this area of the law a substantial risk and serious concern for any San Diego or California employer?
Key Takeaways for Why a PAGA Lawsuit is a Continuing Risk for California Employers
- The Private Attorneys General Act or PAGA was designed by the State of California to encourage employees to go after their employers for a variety of offenses on behalf of the State of California.
- The employee(s) in the PAGA action get to keep a portion of the money levied against the employer as an incentive.
- There are specific strategies a California employer can put in place to prevent a PAGA action from ever developing, and to put a stop to any dispute or lawsuit before it can become a six or seven figure PAGA class action.
What is a PAGA Lawsuit?
The “Private Attorneys General Act” or PAGA allows your current or former employees to not only step into the shoes of California’s Attorney General to prosecute labor related claims, it exposes your company to serious and expensive individual and class action litigation. A PAGA action is brought by plaintiffs attorneys providing not only access to records regarding an individual current or former employee, but the power of “discovery” to identify any other potential current or former employee who may have a situation which qualifies to join the suit or become part of a Class Action.
Aggressive PAGA Defense
What is the best defense against employee-related litigation? The number of PAGA lawsuits, unpaid overtime, and wage and hour cases filed in State and Federal Courts has substantially increased over the past few years. PAGA is an area of vulnerability your employee’s lawyer will exploit once a dispute has begun. How can you reduce or eliminate the risk of employee-related litigation? The old saying “The best defense is a good offense” definitely applies here.
The employer defense attorneys at the Watkins Firm have been busy in the past few years, helping our business clients to remain in full compliance with all federal, state and local employment laws while taking proactive steps to insure against potential litigation. We have written extensively about employer defense, as we are committed to serving business owners and employers exclusively. One way to improve your strategy is to evaluate the areas of vulnerability your employee’s lawyer will exploit when they attempt to take you to court.
While PAGA and wage and hour disputes are areas of vulnerability your employee’s lawyer will exploit here are few things to think about:
- Give Honest Work Reviews – the hardest question to answer in a lawsuit goes something like “…you gave this employee high marks across several evaluations, and now all of a sudden they need to be terminated?” Be candid – especially in marginally performing employees. Always note areas of concern, and actions an employee can take to improve them. Reviews that are puffed up or glossed over damage your own credibility and are one of the fastest routes to losing a lawsuit.
- Take Employee Complaints Seriously – the BEST time to resolve any dispute is at the beginning. The lawyers at the Watkins Firm ensure that processes and procedures address employee complaints quickly, comprehensively and aggressively. We work to diffuse the situation, remediate exposure(s), negotiate a resolution and avoid litigation before real trouble shows up at your door.
- Be Familiar With Your Own Policies and Procedures – these gaps of knowledge are exposed at deposition and at trial. When an employer is shown to be unaware of their own policies it damages their case in a manner that is not repairable. At best you look uninformed and uncaring. At worst – you look negligent and malicious in your actions, and this opens the door to exorbitant damages.
The Best Action Any California Employer Can Take the Moment They Learn of Any Employee-Related Dispute
What is the best action any California employer can take the moment they learn of any employee-related dispute or upon the receipt of any sort of letter from plaintiff’s counsel?
Call the Watkins Firm IMMEDIATELY for a Substantive and Free Consultation at (858) 535-1511
This is not a time to put one’s head in the sand and hope things blow over or work out. There are substantial actions you can take, immediately out of the gate, to reduce or eliminate any exposure you may have and put a stop to the PAGA action before it ever gets started. You have a very limited time from any communication such a written letter from outside counsel to take action. A 30 day clock is already running and once that window expires the costs of defense and the ability to reduce the impact of the litigation can be dramatically reduced.
Pro-Tip: “The Private Attorneys General Act has been around for a long time. It is sort of a catch all. If you want to, you can bring an action as if you were the Attorney General for the State of California on behalf of Californians and sue somebody. And it’s been used in a lot of different ways. It’s also been used in something called Qui Tam, which is a Latin term for “to bring in an action on behalf of other parties.” And that happens in different types of actions and these kind of actions are all around the United States. So they’re old and they’ve been used for different types of grievances throughout the history of the State of California. But right now they’re being used on behalf of employees. And when you do so you share some of the money with the State of California, and then you also get money for your clients and the state wins some money and they don’t have to pay their own Attorney General to do it. And also your clients get money and you get some more rights where as a regular class action might be more difficult for you to bring, but in a regular class action, you don’t have to pay the state.
We represent employers. So we’re always trying to do whatever we can to help our clients when it comes to this threat, which is active. And basically there’s a lot of plaintiff’s lawyers out there treating themselves as bounty hunters and going after these companies. And many of our clients didn’t realize this not only applies to their current employees, it also applies to former employees. They just came out with a recent decision that says that they don’t have to even continue to work there, that they can still sue you and act as a class representative.
There are all kinds of rules and regulations on what they can’t do and what we can’t do in defending it and how we approach that. And every case is different and every settlement and every resolution is different. It’s a different kind of beast. The Judge gets involved. All the attorneys get involved. You have to make sure you’re fair to the people that are part of the class. So it’s very complicated and how you handle it in the beginning and throughout the case is important. You can’t just hire a lawyer to go out there and be really aggressive and expect a great result. All you’re going to end up with is a higher bill and higher risk, and nobody being scared away.
I think that failure to act immediately is the biggest risk. You get a claim, you get a letter, you get a notice and you don’t take action right away. That’s your opportunity to cure, fix and get out of the way of the PGA case. The lawyers who are hoping to Sue you don’t make any money if you act quickly, but if you delay and push back or ignore them, then they gain bigger rights and more motivation.
Everybody knows about class certification. You can’t have a class and you have, unless you have like people in a like situation that have suffered the same harm. And a lot of times plaintiff lawyers will try to group everyone together in hopes of getting the judge a certified, so that it’s assumed that everyone has suffered the same harm. And most employers don’t treat each employee the same. I mean, they’re all individually hired and contracted for. And sometimes the problems that are being alleged are not universal. So we want to fight that right away. And we also want to do our discovery and find out if everybody in the company wants to really join this class.” – Dan Watkins, Founding Partner
A PAGA Lawsuit is a Continuing Risk for California Employers
Any wage and hour dispute or a PAGA lawsuit is a continuing risk for California employers. The experienced San Diego employer defense attorneys at the Watkins Firm can provide important insight into the situation and guide you through the immediate actions you can take to reduce or remediate any potential exposure and put a stop to litigation or a full blown PAGA class action lawsuit.
We invite you to review our podcast Episode 18 – Private Attorneys General Act as well as the strong recommendations of our clients and contact the Watkins Firm or call 858-535-1511 for a complimentary consultation today. Learn more about how a PAGA lawsuit is a genuine risk for San Diego employers and what you can do to reduce or eliminate your exposures and associated risks.
Meet Daniel Watkins:
Daniel W. Watkins is a true people person who sincerely listens. He cares deeply about what others are going through. Dan enjoys digging into the facts and finding creative solutions to problems. He contributes his insights candidly and constructively.
Dan’s interest in people make him deeply invested in every relationship and his exuberant personality makes him a true litigator. Dan fights for his clients with a fierce and calculated commitment.
Dan has practiced in the areas of business, medical practices and healthcare business, high tech/science, real estate and employment defense law since 1987. He is a trusted litigation strategist and true trial attorney with over 50 jury and bench trials to his credit. Dan has successfully represented both large companies and individuals and achieved substantial victories in well-publicized trials throughout California and the U.S.
He is experienced in business and corporate formation and administration, as well as all forms of alternative dispute resolution, including binding arbitration and mediation.
THE ROAD TO BECOMING A BUSINESS LAWYER AND LITIGATOR
Dan has almost 40 years of experience working with, for and against some of the largest insurance companies in the country. He has successfully tried and litigated cases in the areas of Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Battery, Premises Liability, Product Defect, Medical Malpractice, Discrimination, Sexual Harassment, Construction Defect, as well as Unfair Competition, Defamation, and Trade Secrets.
In December 2003, Dan commenced litigation against Health South Surgery Centers-West, Inc and its’ subsidiaries, exposing the company’s extensive mismanagement and misconduct of its’ surgery centers. Dan has also been asked by some of California’s largest municipalities and corporations to conduct legally required investigations into matters involving alleged employment discrimination and harassment.
