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 is the founder and owner of Teukolsky Law, A Professional Corporation.