Got PAGA? Understanding the Process and Discovery Under California’s Private Attorney General Act - What is a PAGA Action?
Sierra J. Spitzer, Partner
Schwartz Semerdjian Cauley & Moot LLP
California’s Private Attorneys General Act (PAGA) was legislation designed to supplement state labor law enforcement efforts by allowing individuals to sue as a proxy or agent of California’s state labor law enforcement agencies in collecting civil penalties for Labor Code violations. The employee must give 75 percent of the collected penalties to the Labor and Workforce Development Agency, and the remaining 25 percent is to be distributed among the employees affected by the violations.
Although it is also a representative action, PAGA differs from a class action in several important ways. Some of the key differences include: 1) a one year statute of limitations applies rather than the typical four year statute of limitations applicable to most wage and hour class actions; 2) a plaintiff does not have to certify a class under PAGA to recover damages on behalf of all the other employees in the representative action. Arias v. Superior Court (2009) 46 Cal.4th 969; and 3) while some arbitration agreements with class action waivers are being upheld by the California courts, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, held that PAGA actions are not subject to arbitration and cannot be waived as a matter of public policy.
Discovery in PAGA actions
The seminal case regarding discovery in PAGA actions is Williams v. Superior Court (2017) 3 Cal.5th 531. In Williams, the plaintiff sued Marshalls under PAGA, alleging that Marshalls failed to provide Williams and other similarly situated (i.e., aggrieved) employees their meal and rest periods under Labor Code sections 226.7 and 512. Early on in discovery, Williams propounded on special interrogatories seeking the name, address, telephone number, and company employment history of each nonexempt California employee during the alleged statutory period. Marshalls fought the request, refusing to answer on the grounds that the requests were overbroad because they extended beyond Williams's particular store and job classification; unduly burdensome because they sought private information without first demonstrating “good cause” (i.e. that he was aggrieved or that others were aggrieved); and were an invasion of the privacy of third parties. In turn, Williams moved to compel disclosure of the contact information of Marshalls’ nonexempt employees statewide. The trial court granted Williams’ motion in part and denied it in part. Marshalls was ordered to provide the contact information of other employees, but only at the Costa Mesa location at which Williams worked, subject to an opt-out notice under Belaire-West. As to the remaining 130 store locations, the court denied Williams’ request for employee contact information but indicated the issue could be revisited after Williams sat for at least six hours of deposition and established that there was some evidentiary basis for his allegations of a statewide, unlawful practice of violating the Labor Code.
Williams sought writ relief from the denial of access to employee contact information. However, the Court of Appeal affirmed the lower’s court’s ruling. In doing so, the appellate court relied on statutory language that requires that requests for production be justified by “good cause” (Cal. Civ. Proc. Code § 2031.310(b)(1)). The Court of Appeal found Williams’ request for statewide contact information to be premature because it had not yet been reasonably established that Williams was an aggrieved employee or that any aggrieved employees existed outside of the store where he worked. The appellate court also held that due to the implications of these requests on third party privacy rights, a “compelling need” must first be shown.
Following this ruling, Williams elected to continue the fight, petitioning the California Supreme Court. The Court decided to grant review to resolve what it viewed as remaining uncertainties regarding the appropriate scope of discovery in a PAGA action. Specifically, the Court examined the issue of whether a PAGA plaintiff is presumptively entitled to discovery of the names and contact information of other “aggrieved employees” or if good cause must first be shown in order to gain access to that information and how factors of undue burden, overbreadth and privacy concerns play into same.
Ultimately, in a unanimous decision, the California Supreme Court reversed the lower court entirely, finding that Williams was presumptively entitled to the contact information he sought in his interrogatory. The Court made clear that the right to discovery in California is a broad one, to be construed liberally, and the contact information for those persons a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief. The Court further clarified that there is nothing in the PAGA statute which requires litigants to make a heightened showing in order to conduct discovery and the contact information is subject to disclosure even without an initial showing of good cause.
More specifically, the Court held that the trial court had abused its discretion by requiring Williams to demonstrate an unlawful companywide policy or uniform practice before being entitled to discover the contact information of other allegedly aggrieved employees in a PAGA action. The Court noted that Williams’ interrogatory to identify other aggrieved employees and obtain admissible evidence as a was an essential first step to prosecution of any representative action and nothing in the text of PAGA requires a particular threshold of evidentiary weightiness beyond the requirements of non-frivolousness generally applicable to any civil filing. Cal. Civ. Proc. Code § 128.7. Although Code of Civil Procedure section 2031.310(b)(1) requires that demands for inspection, copying, or sampling be supported by good cause, no such requirement exists for interrogatories.
The Court also held that Marshalls did not satisfy its evidentiary burden of showing that the interrogatory imposed an undue burden. Although Marshalls identified the total number of employees statewide (16,500), it did not provide the trial court with any information regarding the cost or burden associated with providing the information necessary to respond to plaintiff’s interrogatory. Instead, Marshalls focused its argument on Williams’ failure to establish good cause for seeking such contact information. As discussed above, the Court found that Williams was presumptively entitled to this information at the outset of the case; thus, the burden was on Marshalls to show otherwise. The Court also specifically noted that Marshalls had failed to bring a motion under Code of Civil Procedure section 2019.020 for the Court to set a specific sequence and timing for discovery.
Finally, the Court held that the trial court did not properly handle the issue of the employees’ privacy interests. In weighing the privacy rights of employees, the Court found that the appropriate balancing test to employ is that under Hill v. National Collegiate Athletic Ass’n, 7 Cal. 4th 1, 35 (1994) and Pioneer Electronics (USA), Inc. v. Super. Ct., 40 Cal. 4th 360, 370-74 (2007). Under the test established by those cases, the party asserting a privacy right must establish (a) a legally protected privacy interest, (b) an objectively reasonable expectation of privacy in the given circumstances, and (c) a threatened intrusion of that interest that is serious. Id. at 22. Assuming these threshold requirements are met, the party seeking the information must establish countervailing interests served by disclosure sufficient to overcome the proffered privacy interest. The court must then balance the competing considerations. In Williams, the Court found that in the context of the contact information of other potentially aggrieved employees in a wage-and-hour representative action, while the employees have an identifiable privacy interest, the factors of reasonable expectation of privacy and a serious intrusion of privacy are not satisfied. Thus, the balancing test weighs in favor of disclosure of the contact information but in a manner respectful of the right to privacy, i.e. via a Belaire-West-style notice, which provides notice of the nature of the claims at issue and an opportunity for employees to opt out of the disclosure of their contact information.
The Court’s ruling in Williams makes it significantly more difficult for employers to avoid disclosure of the names and contact information of all putative class members/potentially aggrieved employees in wage-and-hour class actions and representative PAGA actions alike. That said, this decision is limited to interrogatories seeking contact information, so a showing of good cause will still be needed with regard to requests for production.