On July 17, 2023, approximately one year after the U.S. Supreme Court’s landmark decision in Viking River Cruises, the California Supreme Court issued its highly-anticipated decision in Adolph v. Uber Technologies.  The Court answered the critical question of whether a Private Attorneys General Act (PAGA) plaintiff retains their standing to pursue non-individual claims after their individual claims are compelled to arbitration. As many had predicted it would, the Court held that the answer is yes.

In Viking River Cruises, the U.S. Supreme Court held that a plaintiff may be compelled to submit an “individual” PAGA claim to arbitration—the portion of a PAGA claim seeking penalties for violations committed against the plaintiff—if the agreement is covered by the Federal Arbitration Act. The Court found that once the plaintiff’s individual PAGA claim is compelled to arbitration  and severed from the non-individual PAGA claims, state law deprives the plaintiff of standing to pursue the non-individual claims in court. However, as Justice Sotomayor observed in concurrence, state courts would “have the last word” on the meaning of state law. Since Viking River, the majority of California courts have rejected the Supreme Court’s interpretation of PAGA standing, instead choosing to stay the non-individual PAGA claim when a plaintiff’s individual claim is compelled to arbitration.

In Adolph, the Court analyzed the history and purpose of PAGA in concluding that a PAGA plaintiff does not lose their standing to pursue a non-individual claim when their individual claim is compelled to arbitration. The Court reasoned that denying a PAGA plaintiff standing to pursue the non-individual PAGA claims was inconsistent with PAGA’s purpose because it would undermine the State’s ability to deputize private plaintiffs to enforce the Labor Code, reduce state revenues, and increase state costs of enforcement.

Although the decision is a welcome development for the plaintiffs’ bar, there are also silver linings for employers. In rejecting the defendant’s argument that its holding would lead to duplicative litigation, the Court cited Adolph’s notable concessions that (1) the trial court may stay the court action pending arbitration, and (2) following arbitration, the arbitration award may be confirmed in court, at which point the arbitrator’s findings would bind the parties in the court action. We previously observed that, as a practical matter, this procedure would mean that a complete victory for the employer would end the case: a plaintiff could not lose their individual claim in arbitration and then proceed to litigate the non-individual claims in court as if nothing had happened.

Moreover, in some cases, the arbitration process may advance the employer’s defense of the court action even if the arbitrator ultimately finds the plaintiff was aggrieved. For example, in cases alleging violations in spite of a lawful policy, a PAGA plaintiff might prove liability in arbitration only by resorting to highly individualized evidence, such as disputed testimony about what the plaintiff was instructed by individual managers. If the arbitration of a single alleged Labor Code violation proves burdensome, that could be a powerful demonstration that a trial involving the claims of hundreds or thousands of individuals would be unmanageable.

The future of PAGA litigation depends in large part on how the California Supreme Court will resolve such questions of manageability.  In Estrada v. Royalty Carpet Mills, Inc., the Court is poised to decide whether courts have authority before trial to strike or limit PAGA claims as unmanageable—a question that has split Courts of Appeal.  But even Estrada, which held trial courts have found no such authority, stipulated that courts have inherent authority to limit the presentation of evidence at trial, which could make it difficult as a practical matter to prove an unmanageable claim.

With Adolph in the books, employers facing PAGA claims should carefully consider the potential benefits and drawbacks of arbitration and consult with counsel experienced in the area to ensure their rights are adequately protected.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

Photo of Jonathan Slowik Jonathan Slowik

Jonathan Slowik is a special counsel in the Labor Department and a member of the Employment Litigation & Counseling Group.

Photo of Laura Vaughn Laura Vaughn

Laura Vaughn is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Practice Group and Counseling, Training & Pay Equity Practice Group.

Laura has experience defending employers in a variety of employment actions, with…

Laura Vaughn is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Practice Group and Counseling, Training & Pay Equity Practice Group.

Laura has experience defending employers in a variety of employment actions, with a significant focus on class, collective, and representative actions involving wage and hour issues, including the following:

  • Private Attorneys General Act (PAGA)
  • Fair Labor Standards Act (FLSA)
  • Meal and Rest Breaks
  • Reimbursement of Expenses
  • Off-the-Clock Work
  • Wage Statements
  • Final Pay

She also counsels employers on a diverse range of employment issues.

Laura has represented clients in a number of industries, including retail, hospitality, and communications.

Laura received her B.A. from UCLA, cum laude, and J.D. from USC Gould School of Law, where she was a member of the Hale Moot Court Honors Program.