In 2004, California voters passed Proposition 64 to do away with non-class but “representative” consumer lawsuits (brought under Business & Professions Code §§17200, et seq.). Within that year, the California Legislature reinvented such actions in the employment context. The Labor Code Private Attorney General Act of 2004, Labor Code §§2699 et seq., created new civil penalties for violations of the Labor Code, and permitted one “aggrieved” employee to sue “on behalf of” all other employees “against whom one or more of the alleged violations was committed.”
The text of PAGA is replete with ambiguities. Unclear, for example, is what procedural hurdles (if any) an employee must clear before a representation of others may commence. Unclear is whom the employee may represent, and when a court is to determine the identity of the represented employees. Is, for example, the court to somehow assess before trial against whom a “violation[] was committed”? Indeed, given that the statute does not seem to contemplate that represented persons even be provided notice of the action, is the court presiding over such an action ever required to determine who is represented, and who is not? This raises still additional questions concerning the res judicata effect, if any, of such an action on such persons. Are represented employees subject to res judicata if they lose, and if so, would such application preclude all subsequent claims by such persons based on the same “primary right,” as decades of jurisprudence would suggest?
