©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 151 459 Lab. Code § 2699(g)(2) (“No action shall be brought under this part for any violation of a posting, notice, agency reporting, or filing requirement of this code, except where the filing or reporting requirement involves mandatory payroll or workplace injury reporting.”). 460 AB 1654, 2018 bill adding Lab. Code § 2699.6. 461 SB 646, 2021 bill adding Lab. Code § 2699.8. 462 Kim v. Reins Int’l California, Inc., 18 Cal. App. 5th 1052 (2017) (PAGA suit cannot continue if underlying claim settled: by accepting a settlement and dismissing his individual claims with prejudice, the plaintiff “essentially acknowledged that he no longer maintained any viable Labor Code-based claims against” the employer and therefore lacked standing to maintain a PAGA action as an “aggrieved employee”), rev. granted, No. S 246999 (Cal. Mar. 28, 2018). 463 Id. 464 Kim v. Reins Int’l California, Inc., rev. granted, No. S246911 (Cal. Mar. 28, 2018), 465 Kim v. Reins Int’l California, Inc., 9 Cal. 5th 73, 84–85 (2020). 466 Robinson v. Southern Counties Oil Co., 53 Cal. App. 5th 476 (2020). 467 Saucillo v. Peck, 25 F.4th 1118, 1126–27 (9th Cir. 2022) (internal citations and quotations omitted) (emphasis in original). 468 Id. at 1128. 469 Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 388-89 (2014). 470 “Iskanian also established a new rule invalidating predispute waivers of an employee’s right to bring a representative action under [PAGA] to recover civil penalties for an employer’s Labor Code violations. The Iskanian court concluded the FAA did not preempt this new rule because a PAGA representative claim belongs to the state, and an aggrieved employee simply brings the claim as an agent or proxy of the state. Accordingly, a PAGA representative claim is not subject to a private arbitration agreement between an employer and an employee or the FAA.” McGill v. Citibank, N.A., 181 Cal. Rptr. 3d 494, 497 (2014), review granted and opinion superseded sub nom. McGill v. Citibank, 345 P.3d 61 (Cal. 2015), and rev’d, 2 Cal. 5th 945 (2017); accord Betancourt v. Prudential Overall Supply, 9 Cal. App. 5th 439, 445 (2017) (“The trial court correctly denied [defendant]’s motion to compel arbitration because a defendant cannot rely on a predispute waiver by a private employee to compel arbitration in a PAGA case, which is brought on behalf of the state.”). The U.S. Supreme Court denied review of this decision. No. 17-254 (U.S. Dec. 11, 2017). 471 E.g., Lucero v. Sears Holdings Mgmt. Corp., 2014 WL 6984220, at *6 (S.D. Cal. Dec. 2, 2014) (“FAA preempts California’s rule against arbitration agreements that waive an employee’s right to bring representative PAGA claims”); Mill v. Kmart Corp., 2014 WL 6706017 (N.D. Cal. Nov. 26, 2014) (“federal courts have addressed whether the FAA preempts California’s rule prohibiting the waiver of representative PAGA claims, and all have concluded that it does”) (citing Langston v. 20/20 Companies, Inc., 2014 WL 5335734, at *7 (C.D. Cal. Oct. 17, 2014); citing also Chico v. Hilton Worldwide, Inc., 2014 WL 5088240, at *12 (C.D. Cal. Oct. 7, 2014); citing also Ortiz v. Hobby Lobby Stores, Inc., 52 F. Supp. 3d 1070, 1084 (E.D. Cal. 2014) (“Despite the holding of the California Supreme Court, federal law is clear that a state is without the right to interpret the appropriate application of the FAA. District courts within the Ninth Circuit have generally held that PAGA claims are subject to Arbitration Agreements and any waiver clauses within those agreements.”). Accord Parvataneni v. E*Trade Financial Corp., 967 F. Supp. 2d 1298, 1305 (N.D. Cal. 2013), order vacated on reconsideration, 2014 WL 12611301 (N.D. Cal. Nov. 7, 2014) (“[A]n arbitration agreement that denies a plaintiff the right to pursue a representative PAGA claim is still a valid agreement.”); Morvant v. P.F. Chang’s China Bistro, Inc., 870 F. Supp. 2d 831, 846 (N.D. Cal. 2012) (“[T]he Court must enforce the parties’ Arbitration Agreement even if this might prevent Plaintiffs from acting as private attorneys general.”); Quevedo v. Macy’s, Inc., 798 F. Supp. 2d 1122, 1142 (C.D. Cal. 2011) (U.S. Supreme Court’s Concepcion decision compels enforcement of arbitration agreement even where agreement would bar representative PAGA claim); Grabowski v. Robinson, 817 F. Supp. 2d 1159, 1180 (S.D. Cal. 2011) (“PAGA claim is arbitrable, and that the arbitration agreement’s provision barring him from bringing that claim on behalf of other employees is enforceable”). 472 Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 431 (9th Cir. 2015) (finding pre-dispute agreements to waive PAGA claims are unenforceable). For further discussion, see § 5.2.4. 473 Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1913, reh'g denied, 143 S. Ct. 60 (2022) (reversing the lower court’s refusal to mandate arbitration of plaintiff’s individual PAGA claim based on the rule that PAGA actions cannot be divided into individual and “representative” claim). 474 Viking River, 142 S. Ct. at 1925. 475 Id. at 1917 (the Supreme Court also noted that “insofar as [the agreement] was construed as a wholesale waiver of PAGA standing[,]” its severability clause “allowed enforcement of any ‘portion’ of the waiver that remained valid, so the agreement still would have permitted arbitration of [plaintiff]’s individual PAGA claim even if wholesale enforcement was impossible.”). 476 Nickson v. Shemran, Inc., 90 Cal. App. 5th 121, 306 Cal. Rptr. 3d 835 (Apr. 7, 2023); Seifu v. Lyft, Inc., 89 Cal. App. 5th 1129, 306 Cal. Rptr. 3d 641 (Mar. 30, 2023), review granted (Cal. June 14, 2023); Gregg v. Uber Tech, Inc., 89 Cal. App. 5th 786, 306 Cal. Rptr.3d 332 (Mar. 24, 2023), review granted (Cal. June 14, 2023); Piplack v. In-N-Out Burgers, 88 Cal. App. 5th 1281, 305 Cal. Rptr. 3d 405 (Mar. 7, 2023), review granted (Cal. June 14, 2023); Galarsa v. Dolgen California, LLC, 88 Cal. App. 5th 639, 305 Cal. Rptr. 3d 15 (Feb. 2, 2023), as modified on denial of reh’g (Feb. 24, 2023) (certified for publication), review granted, 528 P.3d 18, 307 Cal. Rptr. 3d 588 (Cal. May 3, 2023). As noted, the California Supreme Court has agreed to review the rulings in these decisions. 477 Adolph v. Uber Technologies, Inc., No. S274671 (Aug. 1, 2022). 478 Williams v. Superior Court (Marshalls of CA, LLC), 3 Cal. 5th 531 (2017). 479 Id. at 538. 480 Id. at 551 (internal citations and quotations omitted). 481 Id. at 542. 482 Id. at 544.
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