Quite often it happens that an employer has a policy that is applicable to a group of employees. That is where, typically, the class action vehicle may come in where a group of workers are harmed in the same way so that a single lawsuit against the employer can be brought on behalf of the group.
The difficulty with class actions nowadays are that most employers have arbitration agreements their employees sign as a condition of employment. And the arbitration agreements typically prohibit class actions. While the law in this area is rapidly changing, there is case law that says an employer can do so.
Most employers, if they are up-to-date, are using arbitration agreements to make sure that they don’t get sued on a class action basis.
We have maneuvered around these class action waivers and arbitration provisions through the use of a law known as the Private Attorneys General Act (PAGA). Courts have decided that a suit brought under PAGA is different than a class action and it’s not subject to the waiver provision of an arbitration agreement. So, you effectively can recover on behalf of the group, but it’s not the same type of a recovery under a class action.
PAGA allows aggrieved employees to recover a variety of penalties and when there are a lot of employees, it becomes really expensive for an employer. This is because the employer’s penalties are multiplied by the number of times the illegal act happened, multiplied by each pay period, multiplied by each employee. It can be very expensive for big employers.
Employees who have been with an employer longer are going to have a higher amount of damages than the people who have been there for a shorter period of time, simply because they have been exposed to the wrongful activity for a longer period of time. Therefore, employees with more tenure than their colleagues within the same case will be entitled to greater damages.