The Ninth Circuit Court of Appeals recently held, in Alcantar v. Hobart Service, that an attorney’s letter did not comply with PAGA notice requirements, and therefore dismissed plaintiff’s PAGA claims. According to the court, “the letter in which plaintiff disclosed his allegations against the employer did not contain sufficient facts to comply with the statute’s notice requirements.”
PAGA allows an employee to bring an action against an employer to recover civil penalties for violations of the California Labor Code. Cal. Lab. Code § 2699(a). This powerful statute allows plaintiffs to bring claims on behalf of other aggrieved employees, without requiring the employee to follow typical class action protocols.
PAGA Requires Written Notice of Facts and Theories
Shortly after PAGA was passed, the legislature amended the statute to cure perceived abuses of the Act. Before filing a lawsuit, the employee must give “written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of [the California Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.” Cal. Lab. Code § 2699.3(a)(1). This provides the LWDA and the employer an opportunity to review the allegations and determine whether a violation has occurred and to assess the seriousness of the allegations.
Attorney’s Letter Did Not Comply With PAGA Notice Requirements
After Alcantar filed suit seeking compensation for his commute time and for missed meal and rest breaks, the employer argued that the attorney’s letter did not comply with PAGA notice requirements. The court agreed.
Alcantar’s letter contained a series of legal conclusions, but no facts or theories:
Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a former employee of ITW Food Equipment Group, LLC aka Hobart Service (Defendant). Plaintiff contends that Defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include the extra compensation required by California Labor Code section 1194 in the regular rate of pay when computing overtime compensation, thereby failing to pay Plaintiff and those who earned additional compensation for all overtime wages due; (4) failed to provide accurate wage statements to employees as required by California Labor Code section 226; (5) failed to provide reimbursement for work related expenses as required by Labor Code § 2802; and, (6) failed to provide off-duty meal periods and to pay compensation for work without off-duty meal periods to its California employees in violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section as set forth in California Labor Code section 2699.5.
The court held “[t]he only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code…” and determined “[t]his is insufficient.”
Plaintiff’s letter—a string of legal conclusions with no factual allegations or theories of liability to support them—is insufficient to allow the Labor and Workforce Development Agency to intelligently assess the seriousness of the alleged violations. Neither does it provide sufficient information to permit the employer to determine what policies or practices are being complained of so as to know whether to fold or fight.
The court specifically referenced an unpublished opinion, Archila v. KFC U.S. Properties, Inc., 420 F. App’x 667, 669 (9th Cir. 2011), in which the court affirmed a district court’s dismissal of a PAGA claim, observing that “none of the materials Archila submitted to KFC or the LWDA contain ‘facts and theories’ to support his allegations” and the demand letter “merely lists several California Labor Code provisions Archila alleges KFC violated and requests that KFC conduct an investigation.”
Because Archila was unpublished, it carried little if any weight, and employers could not cite to Archila. Alcantar may have revived Achila.
Employees must provide sufficient facts and theories in their PAGA notices to allow the employer and the LWDA to assess the seriousness of the alleged violations and provide sufficient information to permit the employer to determine what policies or practices are being complained of. Employers should carefully review any PAGA notice to ensure it states the facts and theories upon which the claims are based. If the PAGA notice does not contain sufficient facts to comply with the PAGA notice requirements, the employer may be able to dismiss the PAGA claim. Alcantar is not entirely binding, however, since it is a Ninth Circuit decision interpreting California law. We’ll have to wait and see if any California courts follow Alcantar’s reasoning.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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