On June 15, 2022, the United States Supreme Courtroom issued its significantly expected decision in Viking River Cruises, Inc. v. Moriana. The Supreme Court docket held that California’s rule invalidating pre-dispute agreements waiving the proper to provide “representative” promises less than the Private Lawyers Common Act of 2004 (PAGA) is partially preempted by the Federal Arbitration Act (FAA). The conclusion raises some difficult thoughts that will need to have to be solved in long term litigation, but it should supply businesses with a potent resource to limit PAGA promises.
PAGA and the Concepcion and Iskanian Conclusions
To have an understanding of the Court’s keeping in Viking River Cruises, some background and history is essential.
PAGA is a California statute that permits an “aggrieved employee” to sue his or her employer to collect civil penalties on behalf of the state for violations of the California Labor Code for which there would ordinarily be no personal ideal of action. Cal. Lab. Code §§ 2698, et seq. For most alleged Labor Code violations, PAGA imposes a civil penalty in the amount of $100 for every personnel, per pay back period in which the violations occur. Cal. Lab. Code § 2698(f)(2). Of the penalties recovered in a PAGA motion, 25% are awarded to the workforce towards whom the violations ended up fully commited, and 75% are awarded to the California Labor Workforce and Advancement Agency. Cal. Lab. Code § 2699(i). California courts have interpreted PAGA to permit a single staff who has endured any 1 alleged Labor Code violation to declare penalties for any and all violations that may well have been fully commited versus other staff even if they did not personally practical experience them. Huff v. Securitas Sec. Servs. United states of america, Inc., 23 Cal. Application. 5th 745 (2018).
In 2011, the United States Supreme Courtroom held that the FAA preempts state law rules invalidating course motion waivers in arbitration agreements. AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). Concepcion concerned a client course motion and held that thanks to class actions’ procedural complexity, inclusion of absent-social gathering promises, and large stakes, “[r]equiring the availability of classwide arbitration interferes with basic characteristics of arbitration and consequently produces a plan inconsistent with the FAA.” Id. at 344. Consequently, courts are expected to compel person, bilateral arbitration of any claims protected by an arbitration settlement, except the parties expressly concur to course or collective proceedings. See Lamps Additionally, Inc. v. Varela, 139 S. Ct. 1407 (2019). The Supreme Courtroom later on confirmed that Concepcion’s holding applies to arbitration agreements involving companies and employees. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018).
However, the California Supreme Court held in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (2014), that pre-dispute waivers of an employee’s capability provide a “representative” PAGA action violate California general public coverage and are unenforceable, such as waivers found in or else legitimate arbitration agreements. Although PAGA promises resemble course actions in a lot of respects, Iskanian held that the rule it set up did not operate afoul of the FAA. The Ninth Circuit subsequently held that Iskanian’s rule is dependable with the FAA and Concepcion, albeit on various grounds than Iskanian by itself. Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425 (9th Cir. 2015).
As a outcome, PAGA litigation exploded as plaintiffs’ attorneys sought to evade the influence of arbitration agreements necessitating particular person non-agent proceedings. The concern in Viking River Cruises was no matter if Iskanian is preempted by the FAA.
Viking River Cruises’ Holding
Angie Moriana worked for Viking River Cruises as a Gross sales Representative. She executed an arbitration arrangement that expected her to arbitrate any dispute she had with her employer and contained a “Class Action Waiver” offering that in any arbitral continuing, the parties could not carry any dispute as a course, collective, or representative PAGA motion. It also contained a severability clause specifying that if the waiver was discovered invalid, any course, collective, consultant, or PAGA action would presumptively be litigated in court docket. But less than that severability clause, if any “portion” of the waiver remained valid, it would be “enforced in arbitration.”
Just after her work ended, Moriana filed a PAGA only motion in point out court docket alleging that she was not well timed compensated her closing wages on separation and a number of other wage and hour promises predicated on violations professional by other Viking employees. Viking moved to compel arbitration of Moriana’s “individual” PAGA claim and to dismiss the other PAGA promises. The trial court docket denied the movement and the California Court of Attraction affirmed, keeping that categorical waivers of PAGA standing are opposite to state coverage and that PAGA claims can’t be split into arbitrable person statements and nonarbitrable “representative” promises.
The Supreme Court docket reversed and held that Iskanian’s ban on pre-dispute contractual waivers of PAGA “representative” promises is preempted in some respects, but not many others.
The Court pointed out that California courts confusingly use the time period “representative” to refer to two distinctive ideas. On the 1 hand, a PAGA claim is “representative” in the perception that the authentic social gathering in desire is the point out of California, and the worker-plaintiff acts as its agent. But PAGA also includes what the Supreme Court characterized as a “claim joinder” rule allowing a plaintiff to collect civil penalties predicated on violations dedicated in opposition to other employees, and California courts use the phrase “representative” to explain this attribute of the statute as well.
The Supreme Court docket held that Iskanian’s rule prohibiting waiver of a “representative” assert in the initially perception is consistent with the FAA. The Court held that Concepcion does not stand for the proposition that all sorts of proceedings in which 1 get together represents another’s interests interfere with the basic attributes of arbitration. In contrast to a class motion in which just one plaintiff can represent the pursuits of potentially thousands of men and women, in a PAGA circumstance there is only a solitary represented bash: the California Labor Workforce and Development Agency. This reality, alongside with other procedural distinctions concerning PAGA steps and course steps, led the Court docket to distinguish Concepcion and keep that California may perhaps call for that arbitration or litigation of PAGA claims be “representative” in the sense that the plaintiff signifies the state’s pursuits.
Nonetheless, the Court docket found that Iskanian’s prerequisite that a PAGA plaintiff be permitted to sign up for alleged Labor Code violations in opposition to other staff is preempted when the course of action conflicts with the terms of an arbitration settlement. The Court docket characterised promises for civil penalties arising from alleged Labor Code violations fully commited towards the plaintiff as the plaintiff’s “individual PAGA claims” and held that an employer and personnel may perhaps contractually concur to restrict arbitration to just these “individual” promises and exclude “’representative’ (or possibly quasi-consultant) PAGA promises arising out of situations involving other employees.” The Courtroom turned down the plaintiff’s argument that a PAGA action normally consists of a one, indivisible assert, getting as a substitute that Iskanian needed “compulsory” “joinder” of claims the events under no circumstances agreed to arbitrate in violation of the FAA.
The Courtroom concluded that the plaintiff’s particular person PAGA promises need to be compelled to arbitration under the phrases of the parties’ agreement, and that the “representative” PAGA promises asserting violations from non-occasion staff members that remained in courtroom must be dismissed. The holding that the non-individual PAGA claims must be dismissed was dependent on the Court’s interpretation of PAGA’s statutory standing rule necessitating a PAGA plaintiff to be an “aggrieved employee.” Cal. Lab. Code § 2699(a). PAGA defines an “aggrieved employee” as “any human being who was used by the alleged violator and in opposition to whom one particular or more of the alleged violations was fully commited.” Cal. Lab. Code §§ 2699(c). The Supreme Court construed this to signify that “a plaintiff can manage non-individual PAGA statements in an action only by virtue of also retaining an specific assert in that action,” so the Court’s keeping all of the plaintiff’s person PAGA promises had been arbitrable expected dismissal of her non-person promises in court docket.
Viking River Cruises is a dense and hard conclusion that is sure to create a great deal more ligation. One major open up difficulty, recognized by Justice Sotomayor’s concurrence, is regardless of whether California courts will identify that the Supreme Courtroom misconstrued PAGA’s standing necessity, and what will come to be of a plaintiff’s non-personal PAGA statements if they do and all particular person promises are compelled to arbitration. Justice Sotomayor’s concurrence also advised that the California legislature could modify PAGA’s statutory standing policies even if the Supreme Court docket interpreted them appropriately. For now, companies need to be able to compel arbitration of a PAGA plaintiff’s claims to the extent they come up from alleged Labor Code violations committed from the plaintiff individually, and employers will be in a powerful placement to argue that this demands dismissal of the remaining PAGA statements in courtroom. Businesses should really review their arbitration agreements to ensure that they require arbitration of employees’ particular person PAGA promises steady with the language and ideas utilised in Viking River Cruises, and that the agreements do not comprise any language that could be construed as excluding PAGA promises or demanding litigation of specific PAGA claims in the function a total “representative waiver” is identified invalid.