124 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com In a series of post-Viking River decisions, California Courts of Appeal dealt significant blows to employers’ attempts to avoid representative PAGA actions by holding that an employer can compel arbitration of the plaintiff’s individual PAGA claims, but cannot compel arbitration of the plaintiff’s representative PAGA claims.461 In other words, notwithstanding compelled arbitration of the plaintiff’s individual PAGA claim, the plaintiff retains standing to pursue representative claims on behalf of other employees in state court or another forum. In a 2023 ruling, the California Supreme Court cemented PAGA plaintiffs’ standing to pursue representative claims on behalf of other employees in state court or another forum.462 But in a somewhat surprising twist, the California Supreme Court’s decision supports the stay of representative PAGA claims pending arbitration, rather than employers having to defend two concurrent actions, and further noted the binding effect the arbitrator’s ruling on the individual PAGA claim has on the plaintiff’s standing to pursue representative PAGA claims.463 Practically speaking, this means that if an employer prevails on individual PAGA claims in arbitration, a representative action by the unsuccessful plaintiff is extinguished – and vice versa. That is, if the individual plaintiff prevails in arbitration, she has standing to pursue a representative action in court. Broad discovery rights. The California Supreme Court, in Williams v. Superior Court,464 made PAGA more annoying yet. A PAGA plaintiff suing a retailer sought personal contact information for thousands of California employees, not just those at the store where he worked. The Court of Appeal upheld the trial court’s discretion to find that the plaintiff had failed to specify good cause to justify the broad discovery sought, but the Supreme Court in Williams reversed. Williams held that in both class and representative actions “the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief.”465 Williams acknowledged that “the Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in fishing expeditions to a defendant’s inevitable annoyance,” but granted the right to broad discovery anyway.466 Williams reasoned that the plaintiff “was presumptively entitled” to the information and that the employer had failed to justify withholding the information on any of three grounds: overbreadth, undue burden, and privacy.467 In rejecting the employer’s argument about overbreadth, Williams held that employee contact information was reasonably calculated to lead to the discovery of admissible evidence.468 The rules for PAGA discovery are the same as those applied in class actions, where plaintiffs can learn names and contact information of other potentially aggrieved employees to gather information to support their claims.469 Williams rejected the employer’s view that PAGA actions are different because PAGA plaintiffs must show that individuals are “aggrieved employees.”470 Instead, for discovery purposes, the plaintiffs need only allege that the employees at issue are aggrieved.471 In rejecting the employer’s argument about undue burden, Williams noted that contact information often appears in a central database, so it would be the exception rather than the rule that an employer could show that producing statewide contact information would be too burdensome.472 In rejecting the employer’s argument about privacy, Williams affirmed that the rules in place as to wage and hour class actions apply to PAGA actions as well. Notwithstanding the privacy right in one’s personal contact information, trial courts cannot preclude discovery of employee contact information or require that employees affirmatively consent to disclosure before allowing it.473 Rather, a court can call for a privacy notice that gives employees the chance to affirmatively opt out, with the default result being disclosure of contact information.474 In this connection, Williams reversed published decisions that had required a party seeking discovery implicating privacy to show a “compelling need” for production. Williams said the degree of the privacy invasion is not always so great as to require a “compelling need” for production.475 While ordering the production of employee contact information in response to interrogatories, Williams acknowledged that when a party seeks information through other discovery devices, such as demands for
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