Employer Sought To Distinguish Its Case Based On Specific Language Of Arbitration Clause . . . No Go.
Williams v. Superior Court, 237 Cal.App.4th 642 (2015) recognizes that a representative action waiver of a PAGA claim is ineffective because the PAGA claim is not divisible into separate individual and representative claims. Because a representative PAGA claim cannot be split into an arbitrable individual claim and a nonarbitrable representative claim, an employee with a representative PAGA claim cannot be forced to arbitrate whether he or she is an “aggrieved person” with standing under PAGA.
Does the result change if the arbitration clause specifically provides for arbitration of aggrieved person status under PAGA?
No, holds Irving v. Solarcity Corporation, No. A143961 (1/3 11/29/16) (Siggins, Pollak, Jenkins) (unpublished). As the Court explains, “A PAGA claim is representative and does not belong to an employee individually, and an employer should not be able to force an individual employee to arbitrate any portion of the claim.” Slip Op. at *6.
COMMENT: The twist in the case – an arbitration clause that specifically calls for the arbitration of aggrieved person status under PAGA – may be new in the case law. It was to be anticipated that resourceful employers’ counsel would employ such contract language after Iskanian and Williams. However, despite facts that may be unique, the Irving case is unpublished and therefore cannot be cited as authority.
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