California Employment Law Update

Category Archives: Arbitration Agreements

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PAGA Plaintiffs May Maintain Representative Claims In Court After Individual Claims Are Compelled To Arbitration

By Tony Oncidi on Posted in Arbitration, Arbitration Agreements, Arbitration provision, California Supreme Court, Class Action, Class Actions, Collective Bargaining, Court of Appeal, Employment Contracts, Employment Policies, Independent Contractor, Independent Contractors, PAGA, Uncategorized
Adolph v. Uber Techs., Inc., 14 Cal. 5th 1104 (2023) After months of anticipation, the California Supreme Court answered “yes” to the critical question of whether “aggrieved” PAGA plaintiffs retain their standing to pursue representative claims in court after their individual claims have been compelled to arbitration. Erik Adolph worked as a driver for Uber, … Continue Reading

Ninth Circuit Broadly Construes Exemption to Federal Arbitration Act

By Gregory Knopp and Jennifer McDermott on Posted in Arbitration Agreements, California Labor & Employment Law, FAA
The Ninth Circuit recently issued an opinion that signals some movement in the direction away from enforcing employment-related arbitration agreements. In Miller v. Amazon.com, Case No. 2:21-cv-00204-BJR, the Ninth Circuit affirmed the district court’s order denying Amazon’s motion to compel arbitration in a case brought by Amazon Flex delivery drivers who made last-leg deliveries of … Continue Reading

Is Arbitration Becoming “Just Somebody That We Used to Know”? — The Beginning of the End of Arbitration

By Tony Oncidi and Hayden F. Bashinski on Posted in Arbitration Agreements, Sexual Harassment
When Congress passed and President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“the Act”) last year, we predicted it was just the beginning of an all-out federal assault on arbitration. We weren’t wrong – so far, there are additional bills pending in Congress to exempt age and race discrimination … Continue Reading

SCOTUS Provides Further Support For Staying PAGA Court Actions Pending Arbitration

By Jonathan Slowik on Posted in Arbitration Agreements, California Labor & Employment Law, California Labor Code, PAGA, U.S. Supreme Court, Wage and Hour
With Adolph v. Uber Technologies, Inc. in the books, it is now clear that Private Attorneys General Act (PAGA) plaintiffs do not lose standing to pursue representative claims in court when their individual PAGA claims are sent to arbitration.  In Adolph’s wake, disputes may arise regarding whether the representative court action should be stayed pending … Continue Reading

Adolph Parts With Viking River, Opening Path for Arbitration-Bound Plaintiffs to Pursue PAGA Claims in Court

By Mark Theodore, Jonathan Slowik and Laura Vaughn on Posted in Arbitration Agreements, California Supreme Court, PAGA
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 … Continue Reading

Enforcement of PAGA Carve Out Suggests Need For New Revisions To Arbitration Agreements

By Tony Oncidi on Posted in Arbitration Agreements, California Labor & Employment Law, California Supreme Court, FAA, PAGA, Supreme Court, U.S. Supreme Court
Duran v. EmployBridge Holding Co., 92 Cal. App. 5th 59 (2023) In 2014, the California Supreme Court determined that Private Attorneys General Act (“PAGA”) claims are immune from arbitration in Iskanian v. CLS Transp. Los Angeles, LLC – which, unsurprisingly, led to an avalanche of PAGA claims being filed as plaintiffs’ lawyers scrambled to make their cases … Continue Reading

No Final Paycheck Due After End Of Temporary Assignment

By Tony Oncidi on Posted in Arbitration Agreements, California Labor & Employment Law, California Labor Code Section 201, PAGA
Young v. RemX Specialty Staffing, 91 Cal. App. 5th 427 (2023) Vanessa Young worked as an employee of staffing company RemX Specialty Staffing and was temporarily assigned to work at Bank of the West.  Young allegedly “verbally abused” a RemX representative on a call about delivery of her paycheck.  Young claimed that the RemX representative “basically” … Continue Reading

If We’ve Said It Once, We’ve Said It 1,000 Times… Pay Those Arbitration Fees Early And Often!

By Tony Oncidi and Dixie Morrison on Posted in Arbitration Agreements, Breach of Contract, California Labor & Employment Law
Many California employers and their counsel remain blissfully ignorant of the latest “gotcha” law in California, which can easily derail an otherwise perfectly planned arbitration.  Back in 2019, the California legislature, an implacable foe of arbitration agreements, set a booby trap for unsuspecting employers by requiring the timely payment of arbitration fees and costs on … Continue Reading

Under-the-Radar Concessions in Adolph Could Shorten PAGA’s Parade Of Horribles

By Jonathan Slowik on Posted in Arbitration Agreements, PAGA, Wage and Hour
On May 10, 2023, the California Supreme Court heard oral argument in Adolph v. Uber Technologies, Inc., a closely watched case that will decide whether a Private Attorneys General Act (PAGA) plaintiff loses standing to pursue a representative claim when their individual PAGA claim is compelled to arbitration. Observers hoping for a sign that the court was inclined … Continue Reading

It May Be Time To Update Those Arbitration Agreements Again!

By Tony Oncidi, Mark Theodore, Jonathan Slowik and Ariel Brotman on Posted in Arbitration Agreements, California Labor & Employment Law, California Labor Code, PAGA, Wage and Hour
Back in the “good old days,” arbitration agreements barred just about any type of civil litigation that was filed in court. Then, as we reported in 2014, the California Supreme Court determined that Private Attorneys General Act (“PAGA”) claims are immune from arbitration in Iskanian v. CLS Transp. Los Angeles, LLC – which, unsurprisingly, led … Continue Reading

“Runaway Juries” And The Lure Of Arbitrating Employment Disputes Highlighted In Latest Podcasts

By Tony Oncidi on Posted in Arbitration Agreements, California Labor & Employment Law, Jury verdicts
Labor & Employment Co-Chair Tony Oncidi was recently interviewed for the Lexis Practical Guidance podcast (links below): In “Runaway Juries in Employment Litigation Podcast,” Tony discusses some astoundingly large jury verdicts (greater than $100 million!) in recent single-plaintiff California employment trials and provides cogent insights about how to avoid same. As one solution to runaway … Continue Reading

What Appellate Courts Are Missing About PAGA Standing After Viking River Cruises

By Jonathan Slowik on Posted in Arbitration Agreements, California Labor & Employment Law, California Supreme Court, PAGA
The California Supreme Court has scheduled oral argument for May 9, 2023 in Adolph v. Uber Technologies, Inc., a closely watched case that concerns whether a Private Attorneys General Act (PAGA) plaintiff loses standing to pursue a representative claim when their individual PAGA claim is compelled to arbitration.  This question was left open by the blockbuster … Continue Reading

Bloomberg Law Podcast: Jury Slashes $137 Million Verdict in Tesla Racial Harassment Case

By Tony Oncidi on Posted in Arbitration Agreements, California Labor & Employment Law, Harassment, Jury verdicts
Labor Co-Chair Tony Oncidi joins Bloomberg Law podcast host June Grasso to discuss the roller coaster verdicts in a Tesla racial harassment case. We covered the original $137 million verdict here, and again here, which was recently reduced by a San Francisco jury to $3.175 million. We invite you to listen to Tony’s interview with Bloomberg Law here … Continue Reading

$137 Million Racial Harassment Verdict Against Tesla Slashed by New Jury!

By Tony Oncidi and Morgan Peterson on Posted in Arbitration Agreements, California Labor & Employment Law, Harassment, Jury verdicts
An astronomical $137 million jury verdict against Tesla has again been reduced, for a second (and potentially final) time. Last Monday, following a five-day trial on damages, a federal court jury awarded Owen Diaz, a former Tesla elevator operator, $175,000 in emotional distress damages and $3 million in punitive damages, totaling nearly $3.2 million—almost $134 … Continue Reading

March 2023 California Employment Law Notes

By Tony Oncidi on Posted in Arbitration Agreements, California Labor Code, Constructive Discharge, Disability, Discrimination, Employment Law Notes, FEHA, FLSA, Harassment, Independent Contractors, Labor Code § 226, Meal Periods and Rest Breaks, Military Leave, Overtime, PAGA, Paid Sick Leave, Pregnancy Leave, Reasonable Accommodation, Retaliation, Sexual Harassment, Unfair Competition, Vacation or PTO, Wrongful Termination
We invite you to review our newly-posted March 2023 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include: No Claim By Employee Who Was Friends With Alleged Harasser Pregnancy Discrimination Lawsuit Was Properly Dismissed Employer That Failed To Layoff Employee Before She Became … Continue Reading

No Arbitration Waiver Where Employer Answered Complaint And Engaged In Limited Discovery

By Tony Oncidi on Posted in Arbitration Agreements
Armstrong v. Michaels Stores, Inc., 59 F.4th 1011 (9th Cir. 2023) Teresa Armstrong executed an arbitration agreement with her employer Michaels Stores. After filing her claims in state court, Michaels answered, asserting its right to arbitration as an affirmative defense and removing the action to federal district court. The parties then submitted a joint case … Continue Reading

Ninth Circuit Strikes Down “Request Arbitration, Go To Jail” Law

By Tony Oncidi on Posted in Arbitration Agreements
Chamber of Commerce v. Bonta, 2023 WL 2013326 (9th Cir. 2023) A Ninth Circuit panel struck down California’s AB 51 (aka the Request Arbitration, Go to Jail Law). The law imposed civil and criminal penalties on employers that required employees to sign arbitration agreements. The same panel previously held that the Federal Arbitration Act (FAA) … Continue Reading

Court Compels Individual But Not Representative Claims To Arbitration

By Tony Oncidi on Posted in Arbitration Agreements, PAGA
Piplack v. In-N-Out Burgers, 2023 WL 2384502 (Cal. Ct. App. 2023) In-N-Out Burgers appealed from the trial court’s denial of its motion to compel arbitration. The trial court denied the motion because In-N-Out’s arbitration agreement contained an unenforceable PAGA waiver. After the trial court’s ruling, the United States Supreme Court held in Viking River Cruises, … Continue Reading

Court Obliterates California’s Anti-Arbitration Law

By Philippe A. Lebel and Morgan Peterson on Posted in Arbitration Agreements, California Labor & Employment Law, FAA, New and Proposed Laws and Legislation
Yesterday, a three-judge Ninth Circuit panel revisited its own 2021 order and finally struck down California’s anti-mandatory employment arbitration law, Assembly Bill 51 (“AB 51”).  In an opinion drafted by the former dissenting judge, Judge Sandra Ikuta, the new majority declared AB 51 was preempted by the Federal Arbitration Act (“FAA”). The statute in question, … Continue Reading

Employees Attack Arbitration Agreement By Claiming “Not To Recall” Signing It – And Lose!

By Tony Oncidi, Kate Gold, Philippe A. Lebel and Dixie Morrison on Posted in Arbitration Agreements, FAA, Labor Code § 925
In recent years, employees (and their lawyers) have taken a variety of approaches to challenging the enforceability of workplace arbitration agreements.  One common tactic has been to claim that they “don’t remember signing it” and, therefore, should not be required to arbitrate their claims.  And at least one Court in the Second Appellate District has … Continue Reading

Arbitrator Should Decide Whether NY or CA Law Applies

By Tony Oncidi, Kate Gold, Colleen Hart, Katrine Magas and Ryan McGill on Posted in Arbitration Agreements, California Labor & Employment Law, California Labor Code, Labor Code § 925
A California court has ruled that an arbitrator (not a judge) should decide on the applicability of California Labor Code Section 925 to a dispute between a law firm partner and his former law firm. Zhang v. Superior Court, 2022 WL 16832570 (Cal. Ct. App. 2022).  This ruling potentially undermines the protections of Labor Code … Continue Reading

November 2022 California Employment Law Notes

By Tony Oncidi on Posted in Arbitration Agreements, Class Actions, Disability, Discrimination, Employment Applications, Employment Law Notes, Equal Pay Act, FCRA, FEHA, Gender discrimination, Harassment, Independent Contractors, Negligence, Reasonable Accommodation, Retaliation, Settlement, Sexual Harassment, Whistleblowers, Workers Compensation, Workplace Safety, Workplace Violence, Wrongful Termination
We invite you to review our newly-posted November 2022 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include: Equal Pay Act Claim Should Not Have Been Dismissed Whistleblower Claim Should Not Have Been Dismissed In Part School District Employee May Have Been Discriminated … Continue Reading

Employer Waived Right To Arbitration By Failing To Timely Pay Arbitration Fees

By Tony Oncidi on Posted in Arbitration Agreements, Discrimination, Retaliation
Espinoza v. Superior Court, 83 Cal. App. 5th 761 (2022) Rosa M. Quincoza Espinoza sued her former employer, Centinela Skilled Nursing & Wellness Centre West, LLC, for discrimination and retaliation.  The employer filed a motion to stay the litigation and compel arbitration, invoking the terms of an arbitration agreement that Espinoza had signed.  After the … Continue Reading

EMPLOYMENT ARBITRATION AGREEMENTS REMAIN LEGAL IN CALIFORNIA – AT LEAST FOR NOW!

By Mark Theodore, Tony Oncidi and Wesley C. Shelton on Posted in Arbitration Agreements, California Labor & Employment Law, California Labor Code
As we previously reported here, in Chamber of Commerce of the U.S.A. v. Bonta, 13 F.4th 766 (9th Cir. 2021), a three member panel of the Ninth Circuit Court of Appeals resurrected California Labor Code Section 432.6, which prohibited employers from requiring California employees to agree to arbitrate their employment-related disputes. In a new twist, … Continue Reading
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