Court Weighs In On PAGA Standing For Pre-Amendment Case

To have standing under the Private Attorneys General Act (PAGA), an employee must have been employed by the alleged violator and suffered at least one Labor Code violation—regardless of whether the violation occurred within the one-year statute of limitations, according to a new California appellate court decision interpreting the law prior to the 2024 amendments.

Edgar Osuna worked for Spectrum Security Services from October 2011 to February 2022. During his tenure, Spectrum allegedly committed Labor Code violations against Osuna and other employees, including failure to provide compliant meal and rest periods, pay minimum and overtime wages, reimburse business expenses, furnish accurate wage statements and timely pay final wages upon separation.

In August 2023, Osuna notified the Labor and Workforce Development Agency (LWDA) of Spectrum’s alleged violations. When the LWDA did not respond, Osuna filed suit in California state court in January 2024.

The complaint included a representative PAGA claim based on the underlying violations identified in Osuna’s LWDA notice.

Spectrum demurred to the PAGA claim, arguing that the applicable one-year statute of limitations barred the claim because Osuna did not provide the LWDA with notice of the alleged Labor Code violations until 18 months after his employment ended.

The trial court agreed, sustaining Spectrum’s demurrer to the PAGA claim. Osuna appealed, and the court reversed.

Looking to the text of the statute, section 2699, former subdivision (c), the court found it “clear and unambiguous.”

“To have standing to bring a PAGA action, ‘[t]he plaintiff must be an aggrieved employee, that is, someone’ ‘who was employed by the alleged violator’ and ‘against whom one or more of the alleged violations was committed,’” the court explained. “Here the [complaint] alleges that Osuna was employed by Spectrum for more than a decade and that he suffered the same Labor Code violations that underlie his representative PAGA claim. He is thus an aggrieved employee with PAGA standing.”

The PAGA statute of limitations is an affirmative defense meant to facilitate the LWDA’s investigation and the employer’s response, the court added – it is not jurisdictional.

“Requiring the employee to have a remedy for the violation – e.g., by ensuring that PAGA’s statute of limitations has not yet run – ‘would add an expiration element to the statutory definition of standing,’” the court said. “Had ‘the Legislature intended to [so] limit PAGA standing … it could have worded the statute accordingly.’”

The recent adoption of Assembly Bill No. 2288 () reinforced this conclusion.

“Assembly Bill No. 2288 was adopted, in part, to supersede [case law] by permitting only those who suffer an alleged Labor Code violation during the one-year statute of limitations to bring a representative PAGA claim,” the court wrote. “That the Legislature saw fit to add to the PAGA standing requirements in place when Osuna brought his claims implies they did not formerly exist.”

The court distinguished the case law presented by Spectrum, as Osuna allegedly suffered one or more Labor Code violations during his employment, as well as ongoing violations.

“The Legislature defined PAGA standing in terms of violations, not injury,” the court held, reversing the order sustaining Spectrum’s demurrer to Osuna’s representative PAGA claim. “[Osuna] became an aggrieved employee, and had PAGA standing, when one or more Labor Code violations were committed against him. … Osuna alleges he was employed by Spectrum and suffered one or more Labor Code violations. This was sufficient to confer standing on him to bring a representative PAGA action.”

To read the opinion in Osuna v. Spectrum Security Services, Inc., click . 

Why it matters: Publishing its opinion to reinforce the standing requirements under former section 2699, the court concluded that, prior to the PAGA amendments enacted last year in Assembly Bill 2288, the text of the statute was clear: a plaintiff must be employed by the alleged violator and have suffered one or more of the alleged violations that were committed. The decision opens the door to liability for employers hoping to rely upon the newly adopted one-year statute of limitations, as plaintiffs can continue to reach back in time to file a PAGA suit.