Metropolitan News-Enterprise


Thursday, July 22, 2021


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Employee Whose PAGA Claim Is Time-Barred May Maintain Representative Action—C.A.


By a MetNews Staff Writer


An employee whose individual claim against an employer for wage-and-hour violations is time-barred may still maintain a representative action, Div. One of the Fourth District Court of Appeal declared yesterday.

In a decision reversing a judgment dismissing an action under the Private Attorney General Act of 2004 (“PAGA”), Acting Presiding Justice Richard D. Huffman said the situation is similar to one dealt with by the California Supreme Court in its March 12, 2020 opinion in Kim v. Reins International California, Inc. There, Justice Carol Corrigan declared that “aggrieved employees” who settle and dismiss their individual PAGA claims may still maintain representative actions.

That decision, Huffman said, means that Gina Johnson’s representative action against her employer, Maxim Healthcare Services, Inc., which was dismissed based on her individual action having been filed after the statute of limitations expired, must be reinstated. Johnson sued based on Maxim including a noncompetition clause, barred under California law, in her employment contract.

Huffman wrote:

Kim compels reversal here. Under Kim, we conclude Johnson is an ‘aggrieved employee’ with standing to pursue her PAGA claim. Johnson alleged she is employed by Maxim and that she personally suffered at least one Labor Code violation on which the PAGA claim is based….The fact that Johnson’s individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip Johnson of her standing to pursue PAGA remedies….In this sense, we find the fact that Johnson’s claim is time-barred places her in a similar situation as a plaintiff who settles her individual claims or dismisses her individual claims to pursue a stand-alone PAGA claim.”

The opinion reverses a judgment by San Diego Superior Court Judge Gregory W. Pollack.

The case is Johnson v. Maxim Healthcare Services, 2021 S.O.S. 4100.


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