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The battle brewing over California workers' unique right to sue their bosses

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The battle brewing over California workers' unique right to sue their bosses

California workers who believe they have been victims of wage theft or other workplace abuses have for more than two decades relied on a unique state law that lets them sue employers not only for themselves but also for other workers.

Now a battle is shaping up over the law, known as the Private Attorneys General Act, or PAGA. An initiative seeking to replace PAGA will appear on the ballot in California in November, the culmination of long-standing efforts by corporate and industry groups to undo the law.

Two reports released last week offer dueling narratives about whether PAGA helps or hurts workers — marking the opening of a potentially expensive fight over the landmark law that relatively few know about.

Labor researchers say that the ballot measure, if approved, would harm employees, particularly people with low-wage jobs, by taking away their ability to file what are essentially class-action suits against employers that allege labor law violations. The ballot measure also would weaken the state’s already strained system for enforcing workplace laws, the researchers say.

But the business coalition backing the ballot initiative, called the Fair Play and Employer Accountability Act, counters that the labor law has resulted in a proliferation of lawsuits that small businesses and nonprofits have little ability to fight. Workers end up getting less money after a long legal process than if they had filed complaints through state agencies, the initiative’s proponents say.

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Worker advocates have long complained that chronic understaffing at state agencies responsible for investigating employee complaints means that allegations about wage theft and other violations can take years to be resolved. So workers turn to the courts.

Luz Perez Bautista and her mother, Maria de la Luz Bautista-Perez, were among three named plaintiffs who sued Juul Labs Inc. in federal court in 2020 for allegedly misclassifying some 450 campaign staffers working on a ballot measure the company was promoting to allow the sale of electronic cigarettes in San Francisco. The workers were all classified as independent contractors rather than employees, which saddled them with expenses that employees wouldn’t have to pay.

Juul was sued in 2020 by three workers, who alleged they were misclassified as independent contractors rather than employees, using a California law that allows employees to sue companies on behalf of other workers.

(Ted Shaffrey / Associated Press)

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Workers were made to travel long distances between campaign offices without pay, were not given lunch breaks and were terminated abruptly, Perez Bautista said, speaking at a news conference last week to unveil a report by the UCLA Labor Center as well as researchers at advocacy groups PowerSwitch Action, and the Center for Popular Democracy.

Because the workers had signed arbitration agreements, without PAGA they would not have had the legal standing to take Juul and the nonprofit it created for the campaign to court. Through their PAGA claim workers secured a $1.75-million settlement.

“It is important for other workers to see that … you can hold your boss accountable,” Bautista-Perez said at the news conference.

The report argues broadly that eliminating workers’ ability to pursue private lawsuits would leave them more vulnerable to having their wages stolen by employers and other abuses of their rights.

PAGA plays a “vital role” in bringing bad actors into compliance, said Tia Koonse, legal and policy research manager at the UCLA Labor Center.

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Koonse and other authors of the report said the ballot initiative is disingenuously framed as a push to reform PAGA and bolster other enforcement mechanisms.

“By cloaking policies that hurt workers in language that says they’re helping workers, corporations are making it sound like what is down is up,” said Minsu Longiaru, senior staff attorney for PowerSwitch Action.

Other mechanisms to enforce California labor laws are insufficient on their own, including wage claims and whistleblower complaints investigated by state agencies, the report argues, because the sheer number of labor violations dwarfs the state’s capacity to enforce them.

Each year, the $40 million recovered in approximately 30,000 wage claims filed with the state labor commissioner represents roughly 2% of the estimated $2 billion California workers lose to wage theft, according to the report.

An analysis of California Labor & Workforce Development Agency data by the report’s authors found that 91% of PAGA claims allege wage theft, primarily overtime violations and failure to pay for all hours worked, although some involved violations of earned sick leave rights. Other forms of wage theft include paying workers less than minimum wage, denying workers meal breaks or rest periods and requiring employees to finish tasks before or after their shifts.

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The initiative at the center of discussion, the Fair Play and Employer Accountability Act, got the green light to be placed on the November 2024 ballot almost two years ago.

It proposes to remove the law’s powerful private right of action, which empowers workers to file lawsuits against their employers, suing for both back wages and civil penalties on behalf of themselves, other employees and the state of California. Official language for the measure states it would eliminate “employees’ ability to file lawsuits for monetary penalties for state labor law violations.”

Backers emphasize it also offers replacement provisions that would bolster state agency enforcement of workplace rules.

Replacement provisions include doubling penalties for employers “willfully” violating labor law, requiring 100% of monetary penalties to be awarded to harmed employees (rather than the current division of 25% to the employee and 75% to the state of California), and requiring that the state provide employers with resources to help with coming into compliance.

“Today’s PAGA system is completely broken and does not work well for employees or employers,” said Jennifer Barrera, president of the California Chamber of Commerce, in announcing a report released last week by backers of the ballot initiative, called the Fix PAGA coalition.

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Barrera said that because one employee can sue on behalf of others, it allows lawyers to stack charges and extract high penalties from employers with few barriers because PAGA claims don’t require the same type of notification and certification of workers allegedly affected that a class-action suit would require.

“The statutory framework of PAGA is what creates the abuse,” she said in an interview.

Barry Jardini, executive director of the California Disability Services Assn., said that members of the trade group, many of which are nonprofits reliant on state or federal funding, are increasingly burdened by PAGA claims. He said 20 of some 85 members who responded to a recent survey said they dealt with PAGA claims in 2023.

Jardini said that disability service businesses have struggled to provide true “responsibility-free” 10-minute rest breaks in accordance with labor laws because often workers “can’t just walk away” from clients especially if they are out and about instead of at home. He said employers have looked for creative solutions, such as paying employees extra for working through breaks or tacking on breaks at the beginnings or ends of shifts rather than the middle, but these fixes aren’t legal substitutes for rest breaks workers are entitled to.

“We run into a bit of a legal rock and a hard place,” he said. “We do have a conflict with the law in terms of some of our services. Once that becomes known, it’s relatively easy for an attorney to try to solicit a client that works in this industry that is maybe ripe for PAGA claims.”

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The claims sap resources and lead to program closures because “providers with very thin margins are using up their reserves on settling these claims,” Jardini said. “Other times providers are unable to give wage increases to their staff. And at the end of the day it impacts people with disabilities.”

Some disagree that there is rampant of abuse of PAGA. UCLA Labor Center researchers published a report in February 2020 finding no evidence that PAGA unleashed a flood of frivolous litigation, as its detractors complain, and that it had demonstrably enhanced Labor Code compliance among employers.

In response to criticisms outlined by the recent UCLA Labor Center report, Kathy Fairbanks, a spokesperson for the coalition, pointed to findings in the coalition’s report, which argues that PAGA is too slow to resolve claims, leaves workers with little compensation, and enriches lawyers while saddling businesses with costly suits.

Fairbanks said that workers get about one-third of the compensation and that PAGA cases take twice as long compared with cases adjudicated by state agencies. That is because “lawyers take massive fees and are getting rich while workers get very little,” Fairbanks said.

Lorena Gonzalez Fletcher, head of the powerful California Labor Federation, agreed that PAGA is at times abused by “unscrupulous attorneys,” but said repealing the law is not a solution.

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“There’s massive wage theft that goes unaccounted for, and to take away this tool from the tool box would be damaging to workers and a gift for corporate America,” said Gonzalez, who formerly served as a state assembly member known for writing labor-friendly legislation.

If approved by voters, the ballot measure “would leave workers with dwindling opportunities to enforce labor law.”

Gonzalez said it is well understood that state labor agencies are subject to short staffing and ebbs and flows of political desire to take on major cases. Although it’s not ideal to have to rely on private attorneys to help enforce the law, PAGA provides an important avenue for enforcement, she said.

The initiative doesn’t mandate or otherwise clear the way for increased funding for enforcement agencies, Gonzalez said.

To suggest the business lobby, through the ballot initiative, is asking for changes that will actually improve labor law enforcement “doesn’t pass the smell test,” she said.

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Backers of the ballot initiative are open to working on a legislative compromise to avert a costly battle, spokesperson Fairbanks said. But any sort of deal would have to be reached before the end of June — the deadline to pull measures off the November ballot. The Fix PAGA coalition reports having banked some $15 million in campaign contributions so far.

Business groups have sought to shrink PAGA’s reach in state and federal courts with limited success in recent years.

In June 2022, the U.S. Supreme Court, considering the California case Viking River Cruises Inc. vs. Moriana, ruled that PAGA violated the rights of employers and that the claims of other employees would have to be dismissed because the employee sent to arbitration would no longer have standing to pursue that litigation.

But in a concurring opinion, it also affirmed that interpretation of PAGA was a matter of state, not federal, law and in effect kicked the matter back to California.

State appellate courts consistently have held that PAGA claims by workers cannot be forced into arbitration because they are brought as if the individual is operating on the state’s behalf.

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In July 2023, the California Supreme Court rejected an argument by Uber that sought to limit the ability of its drivers to take employment-related disputes to court, unanimously determining that a driver could not sign away the right to represent their peers in a lawsuit.

The decision didn’t end the debate, however, with other cases bouncing around the courts.

A federal appeals court, citing the Uber case, ruled Feb. 12 that a PAGA suit against Lowe’s Home Centers for allegedly underpaying workers who took sick leave could stand.

Judge William Fletcher wrote in the ruling that a state court “has the authority to correct a misinterpretation of that state’s law by a federal court,” including the U.S. Supreme Court.

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Netflix's password-sharing crackdown is paying off as profits beat Wall Street's forecast

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Netflix's password-sharing crackdown is paying off as profits beat Wall Street's forecast

Netflix’s victory lap as the leader in streaming continued Thursday, as the company said it increased its subscriber base by 9.3 million to nearly 270 million in the first quarter.

Revenue was up 15% to $9.37 billion in the first quarter, the Los Gatos, Calif., streamer reported. Net income was $2.3 billion, compared with $1.3 billion in the same period in 2023.

The company beat Wall Street’s estimates on revenue, subscriber additions and net income. Analysts on average had projected that Netflix would increase its customer base by around 5.5 million subscribers, according to FactSet.

Netflix has impressed investors as the company cracks down on password sharing, grows its lower-priced ad-supported subscription tier and puts out a steady stream of popular original programs.

The steamer’s stock price has increased 30% so far this year and has recovered more than two years after subscriber losses and disappointing results sent it spiraling. Its shares closed at $610.56 Thursday, down 0.5%. The shares fell about 5% in after-hours trading.

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“When analyzing key metrics such as subscribers, profitability, and audience demand, it’s clear that Netflix is pulling away from the competition and everyone else is fighting for second place,” Parrot Analytics analyst Wade Payson-Denney wrote in a report.

Netflix has remained the dominant subscription streaming platform in part because of its content prowess with licensed titles, such as “Suits,” and original programs, including international productions, K-dramas, reality shows, live events and sports documentaries.

In a letter to shareholders Thursday, the company forecast revenue growth of 13% to 15% this year. The number of sign-ups for subscriptions with ads grew 65% in the first quarter.

“We’re off to a good start in 2024,” the letter said.

New shows have included the live-action version of “Avatar: The Last Airbender,” based on the popular Nickelodeon series. The series was renewed for two additional seasons. Other popular titles include the fantasy adventure movie “Damsel,” drama “Griselda” and romantic limited series “One Day.”

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Rivals are still trying to match Netflix’s recommendation technology. Walt Disney Co. Chief Executive Bob Iger called Netflix’s technology the “gold standard.” “We need to be at their level in terms of technology capability,” Iger said at a Morgan Stanley conference this year.

lthough many analysts are bullish on Netflix, some note that its growth prospects are limited in the United States and Canada, where many households already subscribe to the platform.

The streamer also needs to replenish its reservoir of popular shows, as some of its series with large fan bases, such as “Stranger Things” and “Cobra Kai,” are approaching their final seasons.

Netflix has been adapting popular manga and anime series such as “One Piece” and working with producers including “Game of Thrones” showrunners David Benioff and D.B. Weiss. Benioff and Weiss, alongside co-creator Alexander Woo, adapted the Chinese sci-fi trilogy “Remembrance of Earth’s Past” into the show “3 Body Problem,” which launched last month.

The company also is investing in live events and sports-related content, including signing a major deal with the WWE to bring its flagship weekly pro wrestling show “Raw” to Netflix in January.

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Analysts are looking for more details about Netflix’s movies strategy, after its longtime film chief Scott Stuber left his position and was replaced by Dan Lin, founder of production company Rideback.

Under Stuber’s leadership, Netflix collaborated with high-profile, A-list stars and directors and won critical acclaim for movies including “The Power of the Dog” and “Roma,” though winning an Oscar for best picture has proved elusive.

Critics have pointed out that Netflix may make more money by investing in series rather than films because there are more hours of content for viewers to consume. Netflix executives have maintained that having original movies on the platform is a key part of their strategy.

“There is no appetite to make fewer films, but there is an unlimited appetite to make better films always,” Netflix co-Chief Executive Ted Sarandos said in an earnings presentation.

Another change that’s afoot — Netflix said starting with its first quarter in 2025, it will no longer provide quarterly membership numbers.

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China’s highflying EV industry is going global. Why that has Tesla and other carmakers worried

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China’s highflying EV industry is going global. Why that has Tesla and other carmakers worried

The U.S.-China rivalry has a new flashpoint in the battle for technology supremacy: electric cars.

So far, the U.S. is losing.

Last year, China became the world’s foremost auto exporter, according to the China Passenger Car Assn., surpassing Japan with more than 5 million sales overseas. New energy vehicles accounted for about 25% of those exports, and more than half of those were created by Chinese brands, a shift from the traditional assembly role China has played for foreign automakers.

“The big growth has happened in the last three years,” said Stephen Dyer, head of the Asia automotive and industrials unit at AlixPartners, a consulting firm. “With Chinese automakers making inroads for most of the market share, that’s a huge challenge for foreign automakers.”

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China’s rapid expansion domestically and abroad has added fuel to a series of clashes between the U.S. and China over trade and advanced technology, as competition intensifies between the two superpowers.

The U.S. has lofty goals for expanding its own EV industry. California, which accounted for 37% of the nation’s electric car sales as of 2022, aims to phase out purchases of new cars that run on fossil fuels by 2035.

Concerns about Chinese oversupply have come just as a broader slowdown in sales has hit EV makers. Tesla announced Monday that it would lay off more than 10% of its workforce in an effort to reduce costs and increase productivity.

In the company’s last earnings report in January, Chief Executive Elon Musk warned about the competitiveness of Chinese brands. BYD, China’s largest EV maker, surpassed Tesla in car sales last year.

“If there are not trade barriers established, they will pretty much demolish most other car companies in the world,” Musk said.

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This year, Manhattan Beach-based Fisker Inc., an electrical vehicle startup, cut 15% of its workforce, had its stock delisted and said it might file for bankruptcy protection. Apple also recently announced an end to its long-held ambitions of making a self-driving EV.

One area in which Chinese automakers handily beat Western competitors is on price, thanks to government subsidies that supported the industry’s initial rise as well as cheap access to critical minerals and components such as lithium-ion batteries, which account for about a third of the overall cost of production.

“It always had these ingredients waiting around,” said Cory Combs, an associate director for Chinese energy policy at the consulting firm Trivium China. “It was kind of a magic moment for these things to come together.”

That enabled the success of BYD, which started producing lithium-ion batteries in 1996 and making cars in 2005.

In March, BYD cut the price of its cheapest EV model in China to less than $10,000. According to Kelley Blue Book, the average EV retail price is $55,343 in the U.S., compared with $48,247 across all vehicles.

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While pricing wars have forced Chinese automakers to slash profit margins at home, they can charge more in overseas markets, further incentivizing exports as domestic growth has slowed. According to research firm Gavekal Dragonomics, demand in China has cooled due to the removal of tax breaks and an increase in the use of public transportation post-pandemic.

“There is a ton of pressure, especially if you are a smaller player, to find a market that is less competitive,” Combs said. “And every market is less competitive than China’s.”

Though 27.5% tariffs have in effect locked Chinese EVs out of the U.S. market, the fear that the cheaper models could eventually undermine American automakers has started to spread.

The Alliance of American Manufacturing warned in a February report that allowing Chinese EVs into the country would be an “extinction-level event” for the U.S. auto industry. The group also cited the risks of Chinese auto companies building facilities across the border in Mexico that could circumvent tariffs.

When the global market is flooded by artificially cheap Chinese products, the viability of American and other foreign firms is put into question

— Janet Yellen

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After a trip to China in April, Treasury Secretary Janet L. Yellen expressed concerns about government-funded overcapacity in Chinese manufacturing of electric vehicles, batteries and solar panels. She noted that other advanced and emerging markets shared those worries, and compared the oversupply to a flood of low-cost Chinese steel hitting the global economy more than a decade ago.

“When the global market is flooded by artificially cheap Chinese products, the viability of American and other foreign firms is put into question,” Yellen said.

The European Union has opened an investigation into government subsidies utilized by China’s EV industry and whether such support violates international trade laws.

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China’s state news agency pushed back on claims of overcapacity in an April article, which said exports accounted for 12% of China’s EV sales last year. It attributed the industry’s success to competitive pricing and technology, rather than government subsidies.

After meeting with German Chancellor Olaf Scholz in April, Chinese President Xi Jinping decried protectionism in other countries and said Chinese EV exports have helped ease global inflation and combat climate change.

How the U.S. is addressing the emergence of China’s EV dominance has already become a hot-button issue for the presidential election in November.

President Biden has encouraged the domestic expansion with the passage of the Inflation Reduction Act, which includes electric vehicle tax credits for U.S. manufacturers, but not if they are sourcing minerals and materials from “foreign entities of concern,” such as China. Meanwhile, presumptive Republican nominee Donald Trump has claimed electric car manufacturing will reduce auto industry jobs, and called for a rollback of the EV-friendly policies enacted during Biden’s term.

Politicians from both parties have proposed even harsher tariffs on Chinese-made EVs should they try to enter the U.S. market, prioritizing the protection of U.S. jobs over goals to reduce carbon emissions.

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“That will make it even more important for Chinese companies to set up local assembly operations to minimize those costs,” said Gregor Sebastian, senior analyst at the New York-based research firm Rhodium Group. “A lot of companies are adopting a wait-and-see approach.”

Even without Chinese auto imports, the technology within the vehicles has unnerved U.S. officials. In March, Biden announced an investigation into Chinese-made “smart cars” and the data the internet-connected vehicles could collect on American users. Collaborations between U.S. companies and CATL, the Chinese battery-making behemoth, have also been subject to greater scrutiny as tensions between the two countries have worsened.

But China has spent decades cementing its status as a global leader in procuring minerals and developing critical technologies such as EV batteries while the U.S. has fallen behind. That will make it harder now for Western automakers to wholly shut out Chinese suppliers, said Tu Le, founder and managing director of Sino Auto Insights, a consulting firm.

“If automakers are going to build affordable, clean-energy vehicles this decade, the only way that happens is by using Chinese batteries,” Le said.

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Money Talk with Liz Weston: Can my credit score really be marred over $20?

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Money Talk with Liz Weston: Can my credit score really be marred over $20?

Dear Liz: I have had great credit for years. Late last year, I somehow overlooked a $20 payment due from one of my credit cards. My score dropped by more than 50 points, from about 815 to 765. I quickly paid the $20 and contacted the issuer. They told me they were required by law to report my delinquent payment, which I found out was not true. I went back and forth with them, but they would not do anything to help. I did file an inquiry with one of the credit bureaus, but I was told there was nothing they could do without the issuer’s cooperation. I spoke with someone in the issuer’s corporate offices, but he could not have cared less. It turns out that this hit on my credit could last seven years — and all over $20. I charge thousands of dollars every year on credit cards and pay the balance every month. Is there anything else I can do to restore my credit to the previous levels?

Answer: The federal Fair Credit Reporting Act does require creditors to report accurate information to the credit bureaus. However, some people say they’ve been able to get their accidental late payments removed by writing “good will” letters to their issuers. These letters explain what happened, emphasize the customer’s previous record of on-time payments and politely request the issuer extend some good will by removing the one-time lapse from their credit reports.

Your issuer is under no obligation to grant your request, and some categorically say they won’t. But it can’t hurt to try.

You also can use this incident as a reason to review how you pay your credit cards. Setting up automatic payments to cover at least your minimum payment will ensure this doesn’t happen again. Keep an eye on your credit utilization as well. Aim to use 10% or less of your credit limits. If you find it difficult to keep your charges below that level, consider making multiple payments each month to keep your balance low.

The unexpected drop in your credit scores was painful, but the good news is that you still have great scores. This oversight is unlikely to have any lasting effect on your financial life. And if you continue to use credit responsibly, your scores will improve over time.

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Complicated condo question

Dear Liz: You recently answered a question about gifting a condo. I understood the first part of your answer: If the person receiving the gift lives in the condo for two of the last five years, then there is no capital gains exposure. The second part of your answer is a little confusing to me. You wrote, “However, her taxable gain would be based on your tax basis in the property: basically what you paid for the home, plus any qualifying improvements.” So, if my mother gifted her condo to me and she paid $50,000 for it 40 years ago, and the condo today is selling for $250,000, what is my capital gains exposure? To keep it simple, assume no capital improvements or other factors.

Answer: Living in and owning a home for two of the previous five years does not erase someone’s capital gains exposure. Instead, they’re entitled to exclude up to $250,000 of home sale gains from their income.

In the case you describe, your potentially taxable capital gain would be $200,000. That’s the selling price of $250,000 minus your mother’s tax basis (which is now your tax basis) of $50,000.

If you owned and lived in the home at least two of the previous five years, your exclusion would more than offset your gain, so the home sale wouldn’t be taxable. If you didn’t make it to the two-year mark, you could get a partial exemption under certain circumstances, such as a work- or health-related move. For more details, see IRS Publication 523, “Selling Your Home.”

Liz Weston, Certified Financial Planner®, is a personal finance columnist for NerdWallet. Questions may be sent to her at 3940 Laurel Canyon, No. 238, Studio City, CA 91604, or by using the “Contact” form at asklizweston.com.

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