Fourth District, Division 1 Agrees With Conclusions Of Lawson and Zakaryan Courts.
The employer in Mejia v. Merchants Building Maintenance, LLC, D074620 (4/1 8/13/19) (Aaron, Benke, Huffman), tried to do what other employers have attempted: compel arbitration of the "victim-specific" relief portion of a PAGA claim. Appellate courts are divided on this question, and in Mejia, the trial court, and the Court of Appeal both came down on the side that has concluded the claim cannot be split so as to compel arbitrating a portion of the claim. The Court notes, however, that the issue is pending before the Supreme Court in Lawson v. ZB, N.A., 18 Cal.App.5th 705 (2017), review granted Mar. 21, 2018, S246711.
The Court explains: "We agree with the conclusion of the Lawson and Zakaryan courts on this question, and conclude that a single PAGA claim seeking to recover section 558 civil penalties may not be 'split' between that portion of the claim seeking an 'amount sufficient to recover underpaid wages' and that portion of the claim seeking the $50 or $100 per-violation, per-pay-period assessment imposed for each wage violation. The result is that an employee bringing a PAGA claim to recover the civil penalties identified in section 558 may not be compelled to arbitrate that portion of her PAGA claim that seeks an amount sufficient to recover underpaid wages pursuant to that statute, while the rest of the claim that seeks the $50 or $100 per-pay-period per violation portion of the penalty remains in a judicial forum. We therefore affirm the trial court's order denying the MDM defendants' motion to compel arbitration in this case."
The Court reasons that there are advantages and disadvantages to filing a PAGA claim. The employer can't compel arbitration, and the "employee may recover the civil penalties due for the wage violations for herself and for her fellow employees . . . but she will be required to give 75 percent of the total recovery to the agency and to split the remaining 25 percent with other aggrieved employees." The Court, however, says that the choice of whether to pursue the PAGA claim is one that belongs to the employee.
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