Respond to a notice
Early Evaluation Conference Playbook
Maximizing § 2699.3(f)
What the EEC is.
Section 2699.3(f), enacted as part of the 2024 PAGA reforms, authorizes courts to order early evaluation conferences in PAGA cases. The EEC is a confidential forum — separate from the cure process and separate from mediation — where the parties discuss the claims with a neutral evaluator. The evaluator may assess the merits, identify curable violations, and recommend resolution approaches. Nothing said at the EEC is admissible in subsequent proceedings.
Strategic value.
The EEC is the most underutilized tool in the reform package. It is the counterpart to the small-employer cure track rather than a universal option: § 2699.3(f)(1)(A) gives the request to an employer 'not covered by' § 2699.3(c)(2)(A) — that is, an employer that did not employ fewer than 100 during the period covered by the notice. A smaller employer reaches the same forum through § 2699.3(c)(2)(B), which entitles it to request a stay and an EEC where the agency finds its cure proposal not facially sufficient or does not act on it. Either way the EEC provides early intelligence about the agency's perspective, a confidential opportunity to demonstrate compliance efforts, and a forum to narrow the dispute before full discovery costs are incurred.
The EEC is available to all employers — no headcount limitation, no prerequisite compliance record.
Post-reform notice.
The PAGA notice must have been filed with the LWDA on or after June 19, 2024. Pre-reform notices are not subject to the EEC process.
Who may request one.
The § 2699.3(f) request belongs to an employer not covered by § 2699.3(c)(2)(A) — an employer of 100 or more during the notice period. It is the complement of the small-employer cure track, not an option layered on top of it. An employer under 100 is not shut out: § 2699.3(c)(2)(B) entitles it to request a stay and an EEC where the agency finds its cure proposal not facially sufficient or does not act. Separately, headcount does not decide whether an employer can cure at all — § 2699.3(c)(3) allows any employer, of any size, to cure within 33 calendar days of the notice's postmark where the only violation it seeks to cure is a § 226 wage statement violation.
No mandatory timeline.
The statute does not specify a deadline for requesting the EEC. However, requesting early — before substantial discovery costs are incurred — maximizes the strategic value.
Court discretion.
The court has discretion to order or decline the EEC. Most courts have not yet established EEC procedures. Filing the request proactively — with a proposed order and procedural framework — increases the likelihood of the court granting it.
Request proactively.
Do not wait for the court or opposing counsel to suggest an EEC. File the request as soon as the complaint is served. Propose specific procedures: evaluator selection, scheduling, confidential statement format, and conference duration. A defense-initiated EEC frames the employer as solution-oriented — not adversarial.
The request should be filed as an ex parte application or stipulated motion, with proposed procedures.
Sample Request Language
Pursuant to Labor Code § 2699.3(f), Defendant [Employer Name] respectfully requests that the Court order an early evaluation conference. This statutory mechanism, enacted as part of the 2024 PAGA reforms, provides a confidential forum for early assessment of the claims and identification of potential resolution approaches. Defendant proposes that the conference be conducted by a neutral evaluator with experience in California wage-and-hour law, scheduled within 60 days, and governed by the confidentiality provisions of § 2699.3(f).
Anticipate opposition.
Plaintiff's counsel may oppose the EEC request, viewing it as a delay tactic. Counter by emphasizing the statutory authorization, the confidentiality protections, and the efficiency benefits — early resolution reduces costs for both parties and advances PAGA's remedial purpose.
The confidential statement is the employer's opportunity to present the defense case to the evaluator without creating admissions.
Confidentiality is absolute.
Section 2699.3(f) provides that statements made during the EEC are confidential and cannot be used as evidence in subsequent proceedings. This allows the employer to acknowledge compliance gaps and propose specific remediation without creating admissions. Use this protection strategically — be more candid about compliance issues than you would be in a mediation brief.
The evaluator's assessment — while non-binding — influences both parties' settlement posture for the remainder of the case.
Evaluator Selection Criteria
Subject matter expertise
The evaluator should have substantial experience in California wage-and-hour law. Former judges, experienced mediators, and retired plaintiff or defense practitioners are strong choices.
No prior relationship
The evaluator should have no prior relationship with either party or counsel. Independence is essential for credibility.
Understanding of the reforms
The evaluator must understand the 2024 reform provisions — penalty caps, anti-stacking, cure, and the EEC process itself. This is new law, and not all practitioners are current.
Conference Presentation Strategy
Lead with compliance
Open by presenting the employer's compliance record — what was in place before the notice, what was implemented after. This frames the employer as compliance-oriented, not evasive.
Present the data
Walk through the three-scenario exposure model. Show the actual violation rates. Demonstrate the gap between the plaintiff's assumptions and the data. Let the evaluator draw their own conclusions.
Be specific about resolution
Do not present a vague willingness to settle. Present a specific framework: monetary amount based on the data-driven scenario, prospective compliance commitments, and a proposed implementation timeline.
Acknowledge legitimate gaps
The confidentiality protection allows candor. If there are genuine compliance failures, acknowledge them and present the remediation plan. Evaluators are more receptive to employers who demonstrate self-awareness than to those who deny everything.
The EEC outcome informs every subsequent defense decision — regardless of whether resolution is achieved.
strong
Resolution Achieved
If the parties reach a resolution framework at the EEC, draft a formal settlement agreement incorporating the EEC terms. Proceed to Moniz court approval with the EEC process documented as part of the investigation. The confidential evaluator assessment supports the reasonableness of the settlement.
moderate
Partial Progress
If the parties narrow the issues but do not fully resolve, use the EEC insights to focus discovery and prepare for mediation. The EEC identifies which violation categories are genuinely disputed and which can be conceded or narrowed. This reduces discovery costs and accelerates mediation.
weak
No Progress
If the EEC produces no movement, the defense still benefits: the compliance record was presented, the exposure model was tested, and the evaluator's assessment (even if unfavorable) informs the carrier authority recommendation and litigation strategy.
The EEC is one component of a multi-mechanism defense strategy.
EEC + Cure (for employers under 100)
If the employer qualifies for the cure mechanism, the EEC and cure can be pursued in parallel. The cure addresses curable violations within 33 days. The EEC addresses the remaining non-curable violations in a broader forum. The cure documentation becomes part of the EEC presentation.
EEC + Penalty Caps
The compliance record presented at the EEC is the same evidence supporting the 15% or 30% penalty cap. Preparing for the EEC simultaneously builds the cap evidence package. The EEC evaluator's assessment of the compliance record informs whether the cap argument is viable.
EEC + Arbitration
If the employer has an arbitration agreement, pursue both the EEC and the motion to compel arbitration. The EEC addresses the representative PAGA claims that remain in court after Adolph splitting. The arbitration addresses the individual claims. These are separate tracks that proceed concurrently.
EEC + Manageability
For multi-location employers, the EEC can surface manageability issues before a formal § 2699(p) motion. If the evaluator identifies site-specific variation during the conference, this supports a subsequent manageability motion — and the confidentiality protection means the acknowledgment cannot be used against the employer.
For illustrative and educational purposes only. The EEC process is new and no published appellate decision has interpreted § 2699.3(f). Court procedures may vary by jurisdiction.