PAGA Claims Are Representative, Not Individual Claims, Fourth District, Division 3 Explains
Here, the arbitration agreement required plaintiff to arbitrate “claims for wages or other compensation due or penalties . . . [and] violation of statute.” But she could not be compelled to litigate her California Private Attorney General Act claim as an individual, as the trial court ordered, because the PAGA claim is by its nature a representative claim. “An employee bringing a PAGA claim ‘does so as the proxy or agent of the state’s labor law enforcement agencies. The act’s declared purpose is to supplement enforcement actions by public agencies, which lack adequate resources to bring all such actions themselves.’” Whalley v. The Wet Seal, Inc., Case No.G047406 (4th Dist. Div. 3 Nov. 15, 2013) (Thompson, J. author 3:0) (unpublished), citing Arias v. Superior Court ,46 Cal.4th 969, 986 (2009).
Here, the employee could not be compelled to arbitrate her representative action as an individual action, and the employer could not be compelled to arbitrate the PAGA claim as a representative action. Result: “We reverse those portions of the order that compel [the employee] to arbitrate her PAGA claim on an individual basis and that bar her representative PAGA claim but we exclude that claim from the arbitration.”
As we have pointed out in other posts (June 5, 2012, July 28, 2013, November 5, 2013) and as the Court points out in Whalley at footnote 4, case law is currently divided on whether an employee can be compelled to arbitrate her PAGA claims on an individual basis. Stay tuned for the California Supreme Court to rule on the pending issue.