The best PAGA defense strategies are comprehensive, aggressive and cutting edge. Make certain you take advantage of the latest case law and legislative developments. A passive approach is unlikely to persuade plaintiff’s attorneys that you may be able to defeat them at the pretrial or trial stage. At the very least, the defense approach should incorporate the following:
1. Are the asserted PAGA violations subject to correction? Certain violations can be corrected before the PAGA case starts. This is a limited defense, but should be explored.
2. Do not assume PAGA is a valid law. Its constitutionality is now at issue in a landmark case in Orange County Superior Court. The case has been brought by a California business association which theoretically could represent your business interests. Explore whether you can take advantage of the precedents in that case.
3. Assess the factual allegations in the requisite pre-lawsuit PAGA letter. Investigate those allegations and develop a plan to show they are inaccurate, inflated or knowingly false.
4. Determine whether the claims have been settled or can be settled between you and the affected employees prior to the lawsuit. The California Supreme Court is considering whether such settlements can effectively bar PAGA claims. Track the Supreme Court’s review of that issue.
5. Audit current practices to ensure any potential Labor Code violations are fixed at the earliest opportunity. This would include a review of meal and rest break policies, timekeeping policies, wage statement practices, business reimbursement practices, overtime calculations, and final pay practices.