Private Attorney General Act

In response to Smith v. Superior Court (L'Oreal USA, Inc.) (2006) 39 Cal.4th 77, the Legislature enacted Lab. Code 201.3(b), which provides that a temporary worker hired by a staffing company and working on assignment for another employer is not terminated for purposes or receiving a final pay check when the temporary assignment ends, but only when the staffing agency… Read More

Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 1407 only held that ambiguity could not be construed against drafter for purposes of determining whether the parties had agreed to classwide arbitration.  It did not hold that the construction against drafter principle is inapplicable to other types of ambiguities in the arbitration agreement.  In any event, there was no ambiguity in… Read More

Following Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639 and Piplack v. In-N-Out Burgers (2023) 2023 Cal. App. LEXIS 166, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated.  However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff… Read More

Reaching the same result as Galarsa v. Dolgen California, LLC (2023) 2023 Cal. App. LEXIS 129, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated.  However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff are not subject to arbitration,… Read More

Part of the Healthy Workplaces, Healthy Families Act of 2014, Lab. Code 248.5(e) provides that  “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief ."  This decision holds that "enforcing this article on behalf of the public" refers… Read More

This decision tries to make sense of arbitration of PAGA claims in light of Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906.  It holds that an arbitration clause's waiver of the right to bring PAGA claims is still unenforceable as against public policy, but that waiver can be severed from the rest of the arbitration clause, leaving the… Read More

Post-Morgan v. Sundance, prejudice to the plaintiff is no longer a factor to be considered in determining whether a defendant waived arbitration by litigating a dispute in court.  The burden of proving waiver is no longer heavy either.  The plaintiff need only show (1) the defendant's knowledge of an existing right to compel arbitration and (2) intentional acts inconsistent with… Read More

Under special legislation, Alameda County established a separate county-wide health district.  This decision holds that the district is subject to suit under some provisions of the Labor Code and IWC wage orders (meal and rest breaks and accurate wage statements) because nothing in the enabling legislation expressly exempts the district; there are no other positive indicia of legislative intent to… Read More

Disagreeing with Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595, this decision holds that an arbitrator's award finding that the employer did not violate the Labor Code as the employee alleged in his individual wage and hour claims operates as collateral estoppel, barring the employee's PAGA claims based on the same alleged violations, for lack of standing. )… Read More

This decision holds that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 overrules the cases that followed Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 in holding that pre-dispute arbitration clauses were unenforceable to compel arbitration of the individual PAGA claim(s) of the plaintiff employee.  Viking River held that the individual plaintiff acts in part… Read More

This decision holds that an arbitration agreement in an employment contract was unconscionable and therefore unenforceable because (1) it did not explain and separately provide for waiver of the employee's right to sue in court to enforce his individual PAGA claim (as opposed to the non-waivable right to sue under PAGA for the benefit of other employees), and (2) in… Read More

An employer's arbitration clause was unconscionable and couldn't be saved by severance.  It required the employee to pay costs he would not incur in a court suit--a $250 filing fee and cost of a postponement if he requested one, neither of which could be shifted to the employer if the employee prevailed.  The clause also provided for an appeal to… Read More

Neither claim nor issue preclusion applies when the prior judgment was obtained against a person acting in a different capacity than the capacity in which he brings the second suit, at least so long as the second suit is also brought on a different right.  Here, the court applies that principle to hold that an arbitration award and judgment against… Read More

Usually, any agreement to waive the employee's right to sue under PAGA is unenforceable.  But there is an exception for collective bargaining agreements that cover construction workers, provide for wages, hours and working conditions, set forth a grievance and arbitration remedy for Labor Code violations, allow the arbitrator to award all remedies authorized by the Labor Code and clearly waive… Read More

The trial court did not abuse its discretion in denying private attorney general fees to Malibu homeowners who successfully challenged a proposed special assessment to protect a beach and nearby homes from erosion.  The trial court correctly estimated the homeowners' potential benefit from the suit as the amount of assessments they sought to avoid over the 20-year period of the… Read More

A PAGA claim is not the same cause of action as an employee's individual claim for damages for an employer's violation of wage and hour laws.  Also, the parties to the two suits are different.  Though the same employee brings both, the real party in interest in the PAGA suit is the State of California.  Accordingly, an employee may bring… Read More

Under IWC Wage Order no. 7, an employer must "provide" a seat to covered clerical employees, unless work requirements preclude work while seated.  This decision holds that except for the most obvious cases (such as where the employer has a seat at work station) whether the employer has "provided" a seat raises a question of fact that precludes summary judgment… Read More

In this PAGA suit, the original plaintiff died while the suit was pending.  This decision holds that the trial court correctly denied a different employee's motion to intervene in the action in place of the deceased plaintiff because the would-be plaintiff was not an employee at the time the original plaintiff sent her complaint to the DLSE and therefore would… Read More

A PAGA suit is not a class action and need not satisfy Rule 23 requirements, including the requirement of manageability.  In light of PAGA's structure and purpose, imposing a manageability requirement in PAGA cases akin to that imposed under Rule 23(b)(3) would not constitute a reasonable response to a specific problem and would contradict California law by running afoul of… Read More

This decision rejects plaintiff's argument that the PAGA statute violates the state constitution's separation of powers clause because it supposedly allows private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion.  The contention is barred by Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 which held that “PAGA… Read More