The Splitting Issue Is Also Pending Before The California Supreme Court.
Splitting log, tie-cutting camp, Pie Town, New Mexico. Russell Lee, photographer. June 1940. Library of Congress.
There are still Private Attorneys General Act of 2004 (PAGA) issues that need to be definitively resolved. One such issue is the subject of Zakaryan v. The Men's Wearhouse, Inc., B2891912 (2/2 3/28/19) (Hoffstadt, Ashmann-Gerst, Chavez):
If an employee brings a solitary PAGA claim, may a trial court split that claim -- that is, may the court send the employee to arbitration (when he has agreed to it) to recover his underpaid wages but retain jurisdiction to award the additional statutorily prescribed amounts?
No, holds the Court in Zakaryan, the claim may not be split. This holding is in accord with Lawson v. ZB, N.A., 18 Cal.App.5th (2017), a case currently pending before the California Supreme Court. However, the holding is in disagreement with Esparza v. KS Indus., L.P., 13 Cal.App.5th 1228 (2017), which allowed the wage claim to go to arbitration, while retaining jurisdiction over the statutory penalties.
So why did the Court publish in Zakaryan? Perhaps because it is not in agreement with Esparza, and disagrees too with a "subsidiary holding" on which Esparza and Lawson were united. As the Court explains, "Larson . . . agreed with Esparza's subsidiary holding that the individual PAGA plaintiff (and, presumably, his coworkers) are entitled to 100 percent of the underpaid wages. . . . We . . . disagree with its subsidiary holding regarding the allocation of the 'civil penalties' recovered." PAGA is in the nature of a qui tam action, in which the private party acts as a proxy for the state's labor law enforcement agencies. PAGA offers "a singular penalty" allowing the state agency to get 75% of both the underpaid wages and the penalties. That's how the Zakaryan Court sees it, relying on the wording of the PAGA statute. Section 2699, subd. (i).
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