PAGA vs. Cal/OSHA: How Employers Can Stay Compliant

The California Division of Occupational Safety and Health (Cal/OSHA) has traditionally been associated with workplace safety complaints. However, California also has the unique Private Attorneys General Act (PAGA), which serves as a general vehicle for reporting labor law violations. Employers and employees alike may wonder how and if Cal/OSHA and PAGA intersect when it comes to workplace safety violations. 

As the “state agency charged with enforcing workplace safety standards,” Cal/OSHA “undertakes such activity either following reports made by employers” or employees and “takes action to enforce its standards,” said Brooke Tabshouri, an attorney with Duane Morris in San Diego. 

But while Cal/OSHA enforces laws directly, PAGA permits workers to sue their employer on behalf of themselves and other employees for labor code violations, “including safety ones that fall under Cal/OSHA’s watch,” said Michael Manoukian, an attorney with Lathrop GPM in San Jose, Calif. In this sense, under PAGA, workers themselves act as enforcers for the state through private lawsuits. 

How PAGA Might Involve Cal/OSHA

There are instances in which PAGA and Cal/OSHA can intersect. This might occur when a worker files a PAGA claim concerning a safety violation that would typically be overseen by Cal/OSHA. Common bases for a Cal/OSHA violation and possible PAGA claim include “if employees aren’t given proper safety gear or are forced to work in an unsafe work environment,” Manoukian explained. 

In this case, workers are free to file a PAGA claim to privately sue their employer, rather than relying on Cal/OSHA to handle the complaint. 

Filing Differences

The process for filing a workplace safety complaint varies according to the reporting mechanism. Normally, a current or former employee will file a Cal/OSHA complaint directly with Cal/OSHA, which could result in an inspection of the workplace and possible citations. 

Before pursuing a PAGA claim via a private lawsuit, an employee must first notify the Labor and Workforce Development Agency (LWDA), as well as their employer. Though the LWDA has 65 days to investigate the claim, “they rarely do because of their limited resources in comparison to the number of PAGA claims the state receives each year,” Manoukian said. Should the LWDA ignore the claim, the worker is free to file a lawsuit. 

A PAGA case can go forward without Cal/OSHA’s participation or findings, but the worker must be able to show that some part of the California Labor Code was violated, Manoukian said. 

But, as Tabshouri noted, “if Cal/OSHA cites the employer, the employee may not bring a lawsuit.” In this situation, the state agency has taken punitive action, negating the need for PAGA. 

Dual PAGA and Cal/OSHA Actions

Employers may worry about the possibility of facing a Cal/OSHA investigation and a PAGA lawsuit at the same time. Though Manoukian has not personally seen this happen, “it’s definitely feasible,” he said, “especially when a workplace is an unsafe environment to a large number of employees.” For example, warehouses and manufacturing facilities could be susceptible to a dual claim. 

Tabshouri is more familiar with this kind of claim stacking. “It’s not uncommon,” she said. “Some employees will simultaneously seek multiple avenues for addressing what they perceive to be violations of the law.” 

Though Cal/OSHA can punish employers that violate safety standards, there is an incentive for workers to go the PAGA route. “Employees do not typically receive damages following a Cal/OSHA investigation, so PAGA lawsuits are attractive for that reason,” Tabshouri explained. 

In general, the courts have supported the notion that PAGA claims can encompass safety violations, even without a citation from Cal/OSHA. However, “some recent rulings involving PAGA claims have limited the scope of the PAGA claims by requiring more proof of widespread violations,” Manoukian said. 

Ultimately, despite PAGA’s popularity, Cal/OSHA remains the chief enforcer of workplace safety laws. As Manoukian noted, “the lion’s share of PAGA lawsuits are still focused on wage and hour violations.”

Steps to Avoid Dual Exposure

To avoid a Cal/OSHA complaint or a PAGA claim, employers should ensure they comply with workplace laws and regulations. This includes regularly training employees, maintaining injury logs, and having safety policies in place. Tabshouri suggested conducting regular audits to guarantee compliance, as well as implementing a simple reporting system for employees so that issues can be fixed quickly. 

“Most employers are required to put together an injury and illness prevention program,” she said, “and such programs require that employers have a mechanism for periodic safety inspections.”

HR and legal teams can take a number of steps to proactively audit a workplace to ensure compliance with safety requirements. Manoukian recommended the following practices: 

• Regularly review Cal/OSHA standards to ensure policies and practices comply.
• Routinely train and educate employees about safety policies and protocols.
• Conduct mock Cal/OSHA inspections to evaluate company compliance.
• Document remediation efforts and maintain clean, updated safety logs.
• Work with outside safety consultants for unbiased reviews.