Today, the Ninth Circuit in Mendoza v. Nordstrom, No. 12-57144, affirmed dismissal of the plaintiffs’ California Private Attorneys General Act (PAGA) claims.  The plaintiffs sought to recover from the luxury retailer on behalf of themselves and other employees for violations of California’s day-of-rest rules, Cal. Labor Code §§ 551 and 552.  The court rejected the plaintiffs’ arguments that it should remand the case to permit them to name a new PAGA class representative after their underlying claims failed, reasoning that nothing prevented a proper plaintiff from filing a new suit.

In Mendoza, the plaintiffs’ underlying claims that Nordstrom violated the day-of-rest rules failed after the California Supreme Court clarified the meaning of the California Labor Code provisions on certification from the Ninth Circuit.  We wrote about that important decision here.

Applying the California Supreme Court’s decision, the Ninth Circuit affirmed that plaintiffs no longer qualified as “aggrieved employees” under PAGA because Nordstrom did not “cause” them to work seven days in a row within the meaning of the statute; the plaintiffs chose to work without a day of rest by voluntarily picking up additional shifts. Because they did not qualify as “aggrieved employees” they could not continue to pursue the claims on behalf of the class.

The plaintiffs asked the court to remand to permit a new aggrieved employee to step forward as the PAGA representative, but the Ninth Circuit declined to exercise its discretion to grant that relief.  The Ninth Circuit noted that a new PAGA representative would have to exhaust his or her administrative remedies before bringing a claim.  The court also reasoned that “[n]othing in the district court’s order or this court’s opinion prevents a proper plaintiff from bringing a new action to vindicate his or her rights in the future.”