Class Actions, Private Attorneys General Act Claims and the Federal Arbitration Act
By Patrick Kitchin, Kitchin Legal APC
On June 23, 2014 the California Supreme Court continued its ongoing reassessment of the relationship between the Federal Arbitration Act (FAA) and California’s laws and public policies. In Iskanian v. CLS Transportation Los Angeles (S204032), the Court held that California may not rely on its public policies as the basis for invalidating an employee’s agreement to resolve his or her claims on an individual basis through binding arbitration. Even if class action waivers function as exculpatory clauses by making it unlikely that employees with small-value claims will be able to effectively enforce their employment rights, class action waivers must be given their full force and effect under the FAA.
Two years after the United States Supreme Court in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740] expressly rejected the public policy grounds relied upon by the California Supreme Court in Discover Bank v. Superior Court (2005) 36 Cal.4th 148, to invalidate a class action waiver in the consumer context, the Court in Iskanian now has expressly overruled Gentry v. Superior Court (2007) 42 Cal.4th 443. Thus, whether a class action waiver is part of a consumer contract (Discover Bank) or part of an employer’s arbitration agreement (Iskanian), public policy arguments and, with limited exceptions, unconscionability arguments, cannot be used to challenge the waiver’s validity under the FAA.
The California Supreme Court also held that the enforcement of class action waivers under the FAA does not violate sections 7 and 8 of the National Labor Relations Act (which give employees the right to “engage in other concerted activities” for their “mutual aid or protection”). Given “the FAA’s liberal policy favoring arbitration,” the sections 7 and 8 of NLRA must yield, the Court explained.
With respect to representative claims under the California Private Attorney’s General Act (PAGA”), however, the Iskanian Court came to a different conclusion. Unlike private employment disputes between one employee and one employer involving statutory damages and specific civil penalties, PAGA claims are pursued by individuals serving as a proxy or agent of the state and are used to collect penalties (primarily) on behalf of California, not damages on behalf of individuals.
Finding that PAGA lawsuits are a type of qui tam action, the California Supreme Court held that the FAA does not preempt the PAGA. Consequently, California may enforce laws that invalidate agreements that purport to result in a waiver of an employee’s right to prosecute claims as a private attorney general under the PAGA. The right to bring a PAGA action is unwaivable. How PAGA can be prosecuted, whether in arbitration, in bifurcated proceedings, or otherwise, remains to be answered.
The dialogue between the United States Supreme Court and the California Supreme Court over issues relating to the FAA, arbitration and class proceedings is fascinating and ongoing. Will the California courts now see the dramatic increase in PAGA case filings forewarned in 2004 when the PAGA was dubbed by business groups and the defense bar as a bounty hunter’s law? Will Iskanian survive, or will the United States Supreme Court be called upon to again evaluate the reach of the FAA in California? The dialogue continues.
Please join us at our Fifth Annual Labor and Employment Symposium (see more below) on September 19, 2014 where our panel discussions will address these issues and more.
Patrick R. Kitchin is a partner at Kitchin Legal, APC, and the ACBA Labor and Employment Section Chairperson. This article originally appeared in the ACBA Labor and Employment Section July 2014 Newsletter. To learn more about the Labor and Employment Section, please visit the ACBA Website.
Fifth Annual Labor and Employment Law Symposium
Registration is now open for the Fifth Annual ACBA Labor and Employment Law Symposium on September 19, 2014 from 9:00 a.m. to 3:030 p.m. at Scott’s Seafood restaurant in Jack London Square. This event is anticipated to sell out, so register today! For more information on panels, speakers, and to register, place click here.