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Supreme Court Hears Oral Argument in Advance of Major Ruling on the Arbitrability of PAGA Claims

By Kate Gold, Philippe A. Lebel & Dylan K. Tedford on April 5, 2022
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Last week, the United States Supreme Court heard oral argument in Viking River Cruises, Inc. v. Moriana, Case No. 20-1573,_ U.S. _ (2022). The case addresses whether the Federal Arbitration Act (“FAA”) requires the enforcement of bilateral arbitration agreements that preclude an employee from bringing claims under the Private Attorneys General Act (“PAGA”) on a representative basis. The plaintiff, Moriana, sued Viking, alleging a number of claims, including failure to pay wages. The parties’ arbitration agreement precludes class and collective claims but Moriana proceeded under PAGA, which allows workers to sue their employers on the State’s behalf for alleged violations of California labor law. In 2014, the California Supreme Court held that because PAGA actions are brought on behalf of the state, employees cannot individually waive their right to bring these claims. Often, this means limited and even minor Labor Code violations become grounds for costly litigation that encompasses all of an employer’s non-exempt California workforce.

At oral argument, the questions focused on state sovereignty, preemption, the compatibility of large PAGA-like claims in the intentionally streamlined context of arbitration, claim preclusion, and whether PAGA provides substantive versus merely procedural rights. Justices Kagan and Sotomayor focused their questioning on areas that would keep PAGA claims in court. For example, Justice Sotomayor questioned the notion that PAGA is an “intentional evasion” of the holdings in prior Supreme Court cases that approved class action waivers in the consumer and employment contexts. Justice Kagan challenged whether it is appropriate to override a state’s decision to enforce its labor laws when “that’s the way the state has decided best serves its sovereign interests.”

Some of the more conservative Justices’ questions, on the other hand, appeared focused on reconciling PAGA with the Court’s prior pro-arbitration rulings. For example, Justice Barrett questioned whether California could create other legislative bypasses to the FAA by characterizing rights as substantive, as opposed to procedural. Similarly, Justice Alito questioned whether it would be appropriate to view a PAGA claim as “a set of claims integrated into a single action by an implicit rule of claim joinder,” drawing a comparison to class claims.

Viking River Cruises’ counsel repeatedly emphasized the important point that an arbitrator easily could deal with an individual’s claims for lost wages, but when the issue becomes resolving several different violations on behalf of the entire salesforce and employer-wide discovery, then arbitration as an efficient dispute resolution mechanism would be gutted in practice. He noted, as California employers are well aware, that dozens of PAGA claims are being filed each day and they look just like class actions (e.g., the ones the parties agreed would be brought on an individual basis in arbitration).

The Supreme Court likely will issue an opinion in Viking River Cruises in June or July of this year. We will provide any updates as soon as they become available.

Photo of Kate Gold Kate Gold

Kate Gold is a partner in the Labor & Employment Law Department in the Los Angeles office.

Kate has over 25 years of experience representing clients in a range of industries, across all areas of employment law.  An experienced litigator, she has represented…

Kate Gold is a partner in the Labor & Employment Law Department in the Los Angeles office.

Kate has over 25 years of experience representing clients in a range of industries, across all areas of employment law.  An experienced litigator, she has represented clients in all types of employment-related suits, including class and collective actions, discrimination, retaliation and harassment, non-compete and wage/hour matters.  In addition to litigating, she conducts high-level workplace investigations and routinely counsels clients on matters involving the full range of state and federal employment issues.

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Photo of Philippe A. Lebel Philippe A. Lebel

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and…

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and appellate level, and before administrative agencies.

In addition to his litigation work, Phil regularly advises clients regarding compliance with federal, state and local employment laws, and assists a variety of companies and financial firms in evaluating labor and employment issues in connection with corporate transactions. Phil also has experience assisting employers with sensitive employee investigations and trainings.  Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board.

Phil has assisted clients in a wide array of sectors including in the biotech, education, entertainment, financial services, fitness, healthcare, high-tech, legal services, manufacturing, media, professional services, sports, and staffing industries, among others.

Phil regularly speaks on emerging issues for employers and has been published or quoted in Law360, the Daily Journal, The Hollywood Reporter, Business Insurance, and SHRM.org regarding a variety of labor and employment law topics.

During college, Phil worked on political campaigns in Atlanta, Georgia and Birmingham, Alabama, and was an intern with the National Gay and Lesbian Task Force and the Gay and Lesbian Victory Fund. Phil is a former member of the Board of Directors of the AIDS Legal Referral Panel.

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Dylan K. Tedford

Dylan Tedford is an associate in our Labor and Employment Department. Dylan graduated from the University of Southern California Gould School of Law, where he was a member of the Hale Moot Court Honors Program and served in several student organizations. While at…

Dylan Tedford is an associate in our Labor and Employment Department. Dylan graduated from the University of Southern California Gould School of Law, where he was a member of the Hale Moot Court Honors Program and served in several student organizations. While at USC, he was a legal extern for Judge Gregg Zive in the U.S. Bankruptcy Court for the District of Nevada. Prior to law school, Dylan was a government affairs coordinator for a lobbying firm in Nevada.

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  • Posted in:
    Employment & Labor
  • Blog:
    California Employment Law Update
  • Organization:
    Proskauer Rose LLP
  • Article: View Original Source

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