Waiver Is Contrary To Public Policy And PAGA Dispute Is Between Employer And The State.
“The sole issue presented on appeal is the enforceability of a waiver of the right to bring a representative action . . . under PAGA . . . That issue has recently been resolved against Pep Boys by the Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (June 23, 2014, S204032) ___ Cal.4th ___ (Iskanian). We therefore affirm.” Venegas v. The Pep Boys Manny Moe & Jack of California, B249579 (2/1 July 30, 2014) (Rothschild, Chaney, Miller) (unpublished).
In my June 23, 2014 post on Iskanian, I quoted from the majority opinion:
“Simply put, a PAGA claim lies outside the FAA’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state, which alleges directly or through its agents . . . that the employer has violated the Labor Code.”
That seems to succinctly explain why the class action waiver need not be enforced. In Venegas, because “the parties agreed that representative actions must be litigated if the representative action waiver is found unenforceable,” the Court of Appeal ordered Venegas’s PAGA claim to proceed in court, not in arbitration.