Whenever an employee brings a Notice of Claim under the Private Attorneys General Act (“PAGA”), the employer has the opportunity, in some circumstances, to cure the alleged violations and avoid the imposition of costly penalties. However, this process is not simple. The employer must meet all the general requirements to cure as follows:
- Correct each violation alleged by any aggrieved employee;
- Comply with the underlying statutes as specified in the employee’s notice of claim; and
- Make any aggrieved employee whole.
California Labor Code § 2699.5 lists all the violations that cannot be cured. Violations identified in § 2699.3 may be cured, including the following two types of violations:
- Failure to include either the start or end date of the pay period wage statements under Labor Code § 226(a)(6); and
- Failure to provide the name and address of the employing legal entity on wage statements under Labor Code § 226(a)(8).
For violations that can be cured, the employer has a period of just 33 days from the time of the postmarked notice of claim from the aggrieved employee. In the wage statement examples stated above, the employer must provide corrected, fully compliant wage statements to every employee for each pay period going back three years from the date of the PAGA notice. This can be quite onerous for larger employers. Moreover, the corrected wage statements must fully comply with each of the requirements listed in Labor Code § 226(a).
After the employer has corrected all wage statements as required above, the employer must provide notice to the aggrieved employee and to the Labor & Workforce Development Agency (“LWDA”). Notice to the LWDA must include a description of the remedial actions taken to cure the alleged violations. Even after this is complete, the employee can still dispute whether an alleged violation has been cured with the agency. If the employer properly cures the wage statement violations, the employee is barred from bringing a civil action against the employer for these violations.
Employers should be aware that they may only cure the above-listed wage statement violations once in a 12-month period. For other violations, the employer is only permitted to cure three times in a 12-month period.
Regardless of whether a violation may be cured, an employer who takes prompt corrective action will likely improve its chances of mitigating any penalties that might be assessed at trial, as the Court has discretion to reduce such penalties.
For more information about responding to a PAGA Notice of Claim from an employee, contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
