I. The Explosion Of PAGA Notices According to data maintained by the California Department of Industrial Relations, the number of PAGA notices filed with the LWDA has increased exponentially over the past two decades. The number grew from 11 notices in 2006 to 1,743 in 2011, to 5,208 in 2016, and to 6,502 in 2021. From 2013 to 2014, employers saw the largest single year increase, from 1,605 notices in 2013 to 4,532 notices in 2014, an increase of 182%. Over the five-year period from 2017 to 2021, the number of notices grew from 4,985 in 2017, to 6,502 in 2021, an increase of 30%. In 2023, the notices topped 7,780.
The increase is a likely reaction to the growth of workplace arbitration, fueled by the availability of fee- shifting awards for attorneys’ fee. II. The PAGA As A Work-Around To Arbitration Although the proliferation of mandatory arbitration programs started as early as 1991 when the U.S. Supreme Court issued its ruling in Gilmer, et al. v. Interstate/Johnson Lane Corp ., 500 U.S. 20 (1991), the movement did not gain steam until 2011, when the U.S. Supreme Court decided AT&T Mobility LLC v. Concepcion, et al., 563 U.S. 333 (2011), and held that the FAA preempts state rules that stand “as an obstacle to the accomplishment of the FAA’s objectives,” and it did not peak until 2018 with the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis, et al ., 138 S. Ct. 1612 (2018), wherein the last hurdle to enforcement of class and collective action waivers was eliminated. As the adoption of arbitration programs gained popularity as a mechanism to contract around class and
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Duane Morris Private Attorneys General Act Review – 2024
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