PAGA Mediation

The 2024 PAGA reform legislation split the statute in two. Cases built on notices filed before June 19, 2024, are valued under the old rules; notices filed on or after that date carry a different standing requirement, a different penalty structure, and a different split with the state. Both kinds of cases are being mediated right now, and they do not value the same way.

Under the reformed statute, the plaintiff must have personally experienced each violation pursued, penalties are reduced for employers who pay weekly, and certain technical wage-statement violations carry sharply lower per-pay-period figures. The employee share of penalties rose from 25 percent to 35 percent, with the balance to the LWDA. Older-notice cases keep the prior framework.

None of this is trivia. Which regime applies, and how squarely a defense can invoke the caps and cure provisions, moves the realistic settlement range by multiples. A useful mediation starts by putting the right statute on the table.

A PAGA number is arithmetic before it is anything else: aggrieved employees, pay periods, assumed violation rates, and per-pay-period penalties, across each Labor Code theory alleged. I ask both sides for the inputs before the session (headcounts, pay-period totals, violation rates, etc.) so the day is spent negotiating the assumptions and realistic exposure rather than discovering them. My brief guidelines list the specific data points that matter.

The model then gets discounted the way a court or a jury would force it to be. Stacking arguments across derivative theories, the employer’s reasonable-steps and cure positions, a trial court’s discretion to reduce an unjust or oppressive award, and the practical limits recognized by courts. So does arbitration posture: after Viking River and Adolph v. Uber, an order compelling the individual claim to arbitration changes sequencing and leverage, but it does not end the representative case.

Both sides usually arrive with a model. The mediation is where the two models are reconciled into a number that survives contact with a courtroom.

PAGA settlements are reviewed by the court, and the proposed settlement must be submitted to the LWDA when it is filed. That makes structure part of the negotiation, not paperwork for later. The allocation between civil penalties and any other relief has to be defensible; a nominal PAGA figure grafted onto a larger deal invites scrutiny. The state’s share must follow the correct split for the notice date. And the release can reach only what PAGA reaches: the penalty claims of the state and the aggrieved employees for the PAGA period. Individual employees keep their own underlying claims unless they separately resolve them.

I structure these terms at the table, in the memorandum both sides sign before the session ends, so the approval motion writes itself instead of reopening the negotiation. For hybrid matters, the class component runs through its own approval standards; see class action mediation for how I handle that side of the case.

Every PAGA session is a full day by Zoom with private breakout rooms, preceded by separate calls with each side and a close read of the briefs and data. Most PAGA cases are wage-and-hour cases underneath; the underlying violation theories are covered in more depth on the wage and hour mediation page, and the general session mechanics are described in my process.

When the gap narrows but will not close, a mediator’s proposal is often the right tool in a representative case, because it gives each side a confidential, simultaneous yes-or-no on a number built for approval. If the matter does not resolve on the day, I keep working it by phone and email until it settles or truly cannot.

The fee for PAGA and other representative matters is a flat $12,500, all-inclusive; the fee schedule covers what that includes. Mixed dockets and related single-plaintiff matters can usually be mediated together; if you are not sure how to structure the session, just ask.