Is it better for employees to file a class action for unpaid wages, or to individually pursue their wage claims in their own lawsuits?

Most large and mid-sized employers require their employees to sign class action waivers. This unfair labor practice has continued to come into vogue in the last few years because the United States Supreme Court has upheld class action waivers. If the employees owed unpaid wages signed binding arbitration agreements with class action waivers it is unlikely they will be able to maintain a class action in court. Under this scenario each employee who is owed wages will have to hire a lawyer to sue for wages. This is not a problem for our wage lawyers. In the last year we represented nine employees who were not permitted to take meal and rest breaks. In another case we represented four employees through arbitration who had to work off the clock.

If you are less concerned with learning about whether you can file a wage lawsuit individually or as a class action and want to know about unpaid bonuses, commissions, controlled standby, double time, minimum wage, overtime, meal breaks, paystub errors, prevailing wage, or rest breaks CLICK HERE to read about wage and hour law, or call 1-877-525-0700 to speak to our wage recovery law firm.

An exception to class action waivers for employee wage lawsuits exists if a Private Attorney General Action (PAGA Action) is brought. Under certain provisions of the California Labor Code an employee may act as a Private Attorney General and file a PAGA action for penalties. The employee is allowed to keep 25% of the recovered penalties. The penalties may be brought for one employee or others similarly situated who experienced the same wage violations. The requirements for PAGA actions are less strict than class actions.


Firm founder, Karl Gerber, has particular expertise filing Private Attorney General Actions. Since this law came into effect more than ten years ago we have been at the forefront of PAGA. By August of 2004 he had written, “The Late 2003 Amendment to Labor Code Sections 1102.5 and 1106 are Salutary,” Matthew Bender California Labor and Employment Bulletin, August 2004. "Labor Code Sections 2699 & 2699.3 Traps for the Weary & Burden to All," San Fernando Valley Bar Notes, February 2005 followed. In the Fall of 2005 firm founder, Karl Gerber was a continuing legal education provider for a seminar on Labor Code Section 2699. In 2007 Gerber won a binding arbitration and recovered PAGA penalties for 69 construction workers.

In 2016 Karl Gerber won a binding arbitration that established employees who signed class action waivers were entitled to PAGA penalties. In addition to this actual adjudication, he obtained court approval on four PAGA settlements in 2016. In 2015 the court approved a PAGA settlement of Gerber’s in which journalists received almost all of the potential PAGA penalties they could have received.


In order to consider filing a wage recovery lawsuit as a class action our law firm requires more than one employee come to our firm seeking representation for the same issues. If multiple employees jointly file a class action the question becomes is each plaintiff who is not a class representative entitled to what is called a, “Service award” for their assistance in the lawsuit? Recently a court asked Mr. Gerber to brief this issue.

Bell v. Farmers, 115 Cal.App.4th 715, 726 (2004) upheld service awards to compensate named plaintiffs for their efforts in bringing the case.

California appellate courts may look to federal authority to determine whether settlement of a class action is fair and reasonable, Garabedian v. Los Angeles Cellular, 118 Cal.App.4th 123 (2009). A number of federal decisions have allowed service awards to named plaintiffs who are not class representatives. Trujillo v. City of Ontario, 2009 WL 263723 (C.D. 2009) awarded service awards of $10,000 to ten of the twelve named plaintiffs. Service awards to two named plaintiffs were justified where they constituted a small percentage of the gross settlement, In Re Mego Fin, 213 F.3d 463. Ingram, 200 F.R.D. 685, 694 (N.D. Georgia 2001) held service awards of $3,000 to non-representative class members who actively participated in the litigation were warranted. Byran v. Pittsburg, 59 F.R.D. 616. 618 (W.D. PA. 1973) awarded the most active members of the plaintiff class service awards. Huguley v. General Motors, 128 F.R.D. 81, 85 (E.D. Mich. 1989), reversed on other grounds at 35 F.3d 1052 (6th Cir. 1994), awarded incentive payments to 88 class members, including named plaintiffs as well as potential and anecdotal witnesses.

Roberts v. Texaco, 979 F.Supp. 201-202 (S.D.N.Y. 1997), in general, wrote plaintiffs in employment class actions who are present or former employees put their credentials and recommendations at risk when suing the employer so service awards are justified. In Boyd v. Bank of America SA-13-CV-00561 DOC, on January 19, 2016 Hon. David Carter awarded $2,000 to each class member deponent for their time and effort in providing deposition testimony in support of the class claims and $1,000 to each class member who provided document and interrogatory discovery responses.

In 2016 Karl Gerber sought approval of multiple class action settlements. If the settlement was being reviewed by a complex judge in complex court where class actions are handled each time the court required a class representative or plaintiff seeking a service award to justify their service award by showing how many hours they spent on the class action. For these reasons it is important plaintiffs in class actions and class representatives keep track of their time working on the case. This is also one of the many reasons why our law firm recommends plaintiffs in employee class actions and class representatives attend depositions of other plaintiffs, witnesses, and mediation. Class representatives who do not do these things may even be deemed inadequate representatives by the court.

Because many wage thefts are small it is unrealistic for a single employee to find a quality attorney to seriously represent them. Cases for unpaid wages such as minimum wage, overtime, meal and rest breaks may have to be brought as a class action.

Contact 1-877-525-0700 for a California wage recovery law firm that can assist you recover wages as a class action or individually.

We have offices in Bakersfield, Los Angeles, Oxnard, Riverside, Sherman Oaks, and Tustin.