Lauren Teukolsky’s commentary was featured in a recent Law360 article on the Ninth Circuit’s recent ruling that California’s A.B. 51 is preempted by federal law. AB 51 prohibited employers from forcing employees to give up their civil rights, such as the right to a jury trial and the right to appeal an adverse decision, as a condition of employment. The ruling, a reversal of the Ninth Circuit’s own prior decision in 2021, is a significant blow to the state’s workers.
California Governor Gavin Newsom signed A.B. 51 into law in 2019, making it illegal for employers to force individuals to waive their right to bring civil rights cases in court as a condition of employment. Arbitration agreements typically stipulate that all claims made by workers—regardless of their severity—must be resolved under private arbitration, a process that overwhelmingly favors employers, disproportionately harms historically marginalized communities, and shields corporations from public scrutiny and accountability. A.B. 51 was meant to ensure that employees were not coerced into signing away their rights, and that all waivers of these significant rights were voluntary.
Last year, a three judge Ninth Circuit panel voted to revisit a 2021 decision in which it partially reversed an injunction that stopped California from enforcing A.B. 51. Last month, the panel found that the Federal Arbitration Act preempted A.B. 51, nullifying the law in most situations and allowing California’s corporations to once again force workers to sign arbitration agreements waiving their civil rights.
Law360’s article features analysis and advice from management-side and workers- side attorneys on how corporations and workers’ advocates should respond to the Ninth Circuit’s decision. In the article, Ms. Teukolsky advises plaintiffs’ lawyers to be extremely cautious when advising clients on arbitration agreements:
"’Plaintiff-side employment attorneys need to think very carefully before they advise an employee to refuse to sign one of these arbitration agreements,’ Teukolsky said. ‘I think you need to advise them: you may lose your job over this. Is that a risk you're willing to take?’" Ms. Teukolsky speaks from experience: she filed one of the only cases under A.B. 51 after her client was fired for expressing opposition to signing away her rights.
To read the article in its entirety, click here. For the Court’s opinion holding that A.B. 51 is preempted, click here.
If you have concerns about an arbitration agreement your employer has recently asked you to sign, click here to get in touch with our office.
Last week, Bloomberg Law cited research by Lauren Teukolsky in an article about oral arguments in Moriana v. Viking River Cruises, Inc., a pivotal Supreme Court case that was sent back to the California Court of Appeal for further action. The appellate court’s decision could have vast repercussions for lawsuits brought under the Private Attorneys General Act (“PAGA”).
Since SCOTUS’s Viking River decision, Ms. Teukolsky’s research shows that California courts have consistently rejected employer arguments that representative PAGA claims must be dismissed once the “individual” component of the plaintiff’s PAGA claim has been sent to arbitration. Bloomberg Law’s article states:
“California trial courts dismissed representative claims after moving individual claims into arbitration in just six of 75 decisions collected and analyzed by Lauren Teukolsky of the plaintiff-side firm Teukolsky Law APC. Bloomberg Law independently reviewed those decisions.”
Ms. Teukolsky’s updated numbers show an even greater trend in favor of employees.
Viking River and the fate of PAGA have been on the forefront of labor and employment experts’ minds for the past several years. In addition to her commentary on the issue for news outlets such as Bloomberg Law and the Daily Journal, Ms. Teukolsky has also discussed the implications of Viking River on a panel for CELA, a statewide organization that works to protect and expand the legal rights of workers, as well as for the College of Labor and Employment Lawyers, the preeminent peer-selected organization of labor and employment lawyers in the United States.
To read the article on Bloomberg Law, click here. To get in touch with Teukolsky Law, click here.
The California Supreme Court recently announced that oral argument in Adolph v. Uber will be scheduled for some time in the next few months. The high court is expected to decide the fate of California's Private Attorneys General Act (PAGA), which allows employees to step into the shoes of the State and bring labor enforcement actions against an employer. In Viking River, SCOTUS held that employers may not force employees to sign arbitration agreements waiving their right to bring PAGA actions. However, once the "individual" component of a PAGA claim is sent to arbitration (assuming that's what the arbitration agreement requires), SCOTUS held that the PAGA claim on behalf of coworkers must be dismissed for lack of standing. In Adolph, the California Supreme Court is expected to decide whether SCOTUS's standing ruling is a correct interpretation of California law.
If trial court orders are any predictor, the California Supreme Court is likely to rule that a PAGA plaintiff does not lose standing to prosecute claims on behalf of coworkers once the "individual" PAGA claim is sent to arbitration. Lauren Teukolsky has analyzed dozens of orders issued by California trial courts on post-Viking motions to compel. As of December 2022, of the 79 orders that Teukolsky analyzed, 12 of them denied the motion to compel outright (because the arbitration agreement explicitly carved out PAGA, because the defendant had unduly delayed in seeking arbitration, and a variety of other reasons). Of the remaining 67 orders, 55 of them sent the "individual" PAGA claims to arbitration, but declined to dismiss the "non-individual" PAGA claims. Trial courts in 20 of those orders explicitly disagreed with SCOTUS on the standing question, while the remainder said they wanted to wait for the outcome of Adolph before ruling. Of the 79 orders, only 11 of them followed SCOTUS to hold that once the individual PAGA claim was sent to arbitration, the PAGA claim on behalf of others must be dismissed (the "Full Alito"). Federal courts are far more likely to follow SCOTUS: Of the 11 federal orders analyzed, 6 of them, or 55%, went Full Alito. By contrast, of the 68 state court orders analyzed, 5 of them, or 7%, went Full Alito.
As of today, March 21, 2023, the numbers are even better for PAGA plaintiffs.
Lauren Teukolsky’s commentary was featured in a recent Law360 article discussing how California plans to handle wage complaints stemming from the collapse of Silicon Valley Bank (SVB). SVB catered to the tech industry for decades before collapsing and being seized by regulators on March 10, 2023. Its collapse made it the largest lender to fail since the 2008 financial crisis and left many of its depositors scrambling to make payroll.
Following SBV’s collapse, the California agency that enforces the Labor Code sent an email to employment defense firm Littler Mendelson providing them with assurances that any employers affected by the bank collapse who attempted in good faith to make payroll would not be subject to penalties for late wage payments. The agency said that it would divert any claims filed by employees under the Private Attorneys General Act (“PAGA”) related to the bank collapse, effectively preventing private lawsuits against employers from moving forward.
While employers and management-side law firms breathe a sigh of relief, workers’ attorneys have voiced concerns that employees need similar protections because many of them live paycheck to paycheck and may default on their own obligations if they don’t get paid. Employees may not be able to pay rent or make minimum payments on credit card bills, leading to the imposition of monetary penalties. The bank failure raises the question: who should bear the risk of a bank default, the employer who controls where the funds are kept, or the employee? Law360’s article states:
“’Banking crises generally can lead to significant impacts on workers,’ said Lauren Teukolsky of Teukolsky Law. ‘It's all well and good for the LWDA to say that employers will be protected. I would like to see similar kinds of protections for employees.’
Teukolsky added, ‘Bank failures are not novel at this point, and so I would hope that employers have some contingency plan for having some cash on hand to make their next payroll.’”
To read the Law360 article in its entirety, click here. To get in touch with Teukolsky Law, click here.
Lauren Teukolsky “Wage and Hour Case Notes” Published in the March 2023 edition of California Labor and Employment Law Review
Lauren Teukolsky’s “Wage and Hour Case Notes” were published in the March 2023 edition of the California Labor and Employment Law Review, describing six new decisions from California and U.S. appellate courts that affect wage-and-hour law. The column discusses arbitration agreements with wholesale PAGA waivers, California’s “outside salesperson” exemption, and the state’s first published appellate court decision to discuss Viking River’s impact on a motion to compel arbitration in a PAGA case, among other topics.
Wage-and-hour law is a dynamic field, with new appellate decisions that regularly reshape the legal landscape. Ms. Teukolsky is an expert in California wage-and-hour law and federal wage-and-hour law, and speaks frequently on wage-and-hour topics at national and state conferences. Her “Wage and Hour Case Notes” are published on a quarterly basis by the California Lawyers Association’s (CLA) Labor and Employment Law Section.
CLA is a voluntary bar association. Its mission is to “promote excellence, diversity and inclusion in the legal profession and fairness in access to justice and the rule of law.”
To read Ms. Teukolsky’s article in its entirety, click here. If you would like to speak with Ms. Teukolsky about a wage-and-hour matter, click here to get in touch.
Lauren Teukolsky’s commentary was featured this week in a Bloomberg Law article on a pending case before the California Supreme Court, Adoph v. Uber Techs, Inc. The case is being closely monitored by both employee-side and management-side attorneys because of its potential ramifications for PAGA (Private Attorneys General Act) litigation.
In the case, California’s highest court will decide whether aggrieved employees maintain standing to bring “non-individual” PAGA claims against their employers on behalf of similarly aggrieved employees when their individual claims are sent to arbitration, a private, quasi-court forum that is favored by employers.
If the Court rules that such employees maintain their standing, it will clear the way for many employees to continue enforcing the state’s labor laws through PAGA, a 2004 state law that authorizes employees to collect civil penalties for violations against themselves and their coworkers on behalf of California’s Labor Commissioner, which has struggled to manage a backlog of cases for the past several decades.
If the Court rules in Uber’s favor, the outlook for the state’s employees would not be so favorable. The Bloomberg Law article states:
“A ruling in favor of Uber allowing claims to be split into individual and non-individual components could make it more difficult to bring PAGA cases forward, said Lauren Teukolsky, a plaintiff’s lawyer and founder of Teukolsky Law in Pasadena, Calif.
‘It’s going to make PAGA litigation much more cumbersome,’ she said. Teukolsky expects the court to rule this summer or in early fall.”
Ms. Teukolsky also discussed why forcing employees to arbitrate claims is detrimental to them:
“Teukolsky said that arbitration comes at a cost for employees because they waive their civil rights, such as the right to a jury trial and the right to an appeal, when they are asked to sign an arbitration agreement,” the article states.
The case follows the U.S. Supreme Court’s 2022 decision in Viking River Cruises, Inc. v. Moriana in which a concurring opinion by Justice Sonia Sotomayor said that California courts should have the final say in whether employers can force arbitration for representative claims.
To read the article in its entirety, click here.
Law.com quoted Lauren Teukolsky in a recent article discussing a California appellate court’s ruling in Wood v. Kaiser. The case holds that workers can use the state’s Private Attorneys General Act (PAGA) to enforce California’s paid sick leave law, (AB 1522). The law requires employers to provide employees with 24 hours of paid sick leave every year.
Before the Wood case was decided, it was unclear whether employees could enforce their right to paid sick leave by suing their employer, or whether only the State could bring suit to enforce the law. This is because the sick leave law does not contain a private right of action but only permits enforcement by the State. However, PAGA allows employees to stand in the shoes of the State to bring enforcement actions against employers. Despite this, several lower courts had previously ruled that workers may not use PAGA to enforce the paid sick leave law, leaving workers without any recourse. The Court of Appeals decision in Wood v. Kaiser effectively overrules those decisions, and represents a victory for workers.
The article states:
“Lauren Teukolsky, an employee-side plaintiffs attorney with Teukolsky Law, said the decision appears to be the first by a California appellate court that specifically addresses the availability of PAGA penalties under the paid sick-leave law.
‘We are all celebrating this victory,’ Teukolsky said in an interview.”
Ms. Teukolsky has represented workers for over two decades. Her commentary on the latest developments in employment law has been featured in articles by Bloomberg Law, Law360, and the Los Angeles Times.
To read Law.com’s article in its entirety, click here. If you believe your employer may be violating California’s sick-pay laws, click here to get in touch with Teukolsky Law.
Law360 quoted Lauren Teukolsky in a February 28 article on the recent nomination of Julie Su to be the next Secretary of Labor. Su has served as Deputy Labor Secretary since 2021, helping oversee the Department of Labor. Before that, Su was head of California’s Labor and Workforce Development Agency and was considered a Labor Secretary candidate, though President Biden ultimately nominated Boston Mayor Marty Walsh for the position. Walsh is leaving to head the National Hockey League’s players’ union.
Under Walsh, the Labor Department supported organized labor and workers through a series of regulatory and legislative actions. If confirmed by the U.S. Senate, Su is expected to continue the Department’s pro-union and pro-worker stance while also stepping up federal enforcement in the areas of worker classification, independent contractor status, and wage and hour issues. Su is President Biden’s first Asian American cabinet secretary.
Worker attorneys and workers’ advocates have voiced near unanimous support for Su’s nomination. Law360’s article reads as follows:
“Lauren Teukolsky of California-based Teukolsky Law said she has known Su since at least 1998, when Teukolsky was a law student and Su was litigation director of the group now known as Asian Americans Advancing Justice Southern California. At the time, the two of them worked on California's Assembly Bill 633, which implemented wage protections for garment workers.
‘Julie's idea was to extend liability for the wages beyond the contractor, beyond the direct employer, to bigger companies that were higher up the food chain, including garment manufacturers and even, in some instances, garment retailers,’ Teukolsky said.
‘It really demonstrates how she is able to think creatively about a labor enforcement problem in a way that other advocates haven't necessarily thought of before,’ Teukolsky said. ‘She just has this ability to problem-solve and use a mix of legislation, advocacy, court rulings, advocacy in the courtroom, just to use all of these different tools as problem-solver.’”
Teukolsky Law congratulates Julie Su on her historic nomination. To learn more, click here to read the Law360 article in its entirety.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.