On June 15, 2022, the U.S. Supreme Court ruled in Viking River Cruises, Inc. v. Moriana that bilateral arbitration agreements governed by the Federal Arbitration Act (FAA) may require arbitration of California Private Attorneys General Act (PAGA) claims on an individual basis only.

In early July, Moriana, the named plaintiff-employee at the center of Viking River Cruises, filed a petition for rehearing with the Court. Moriana argued that the Court’s opinion went beyond the federal question presented and involved the unbriefed issue of state-law contract interpretation and statutory construction that exceeded the Court’s authority.

On August 22, 2022, the high court denied the request for rehearing and issued a final judgment, leaving intact the Court’s analysis of the severability language in Viking River Cruise’s arbitration agreement, as well as the Court’s analysis of statutory standing under PAGA.

While the U.S. Supreme Court’s opinion is now final, the California Supreme Court has granted review in several cases pertaining to employment arbitration agreements and PAGA.  Through these cases, the California Supreme Court may shed additional light on when a plaintiff maintains statutory standing under PAGA.

The enforceability of arbitration agreements in California continues to evolve in other areas as well.  Notably, recently the Ninth Circuit withdrew its opinion pertaining to Assembly Bill (AB) 51 and granted a panel rehearing  of the appeal.  AB 51 is California’s law that purports to prohibit employers in California from requiring employees to sign as a condition of employment or employment-related benefits arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act or California Labor Code. The Ninth Circuit’s move may indicate a likelihood that the Court will conclude the FAA preempts AB 51 in its entirety, potentially giving employers in California the green light to condition employment or employment-related benefits upon an employee’s signing an arbitration agreement.

Jackson Lewis will continue to track cases regarding arbitration agreements and PAGA. If you have questions about employment arbitration agreements in California or related issues, contact a Jackson Lewis attorney to discuss.

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Photo of Mia Farber Mia Farber

Mia Farber is a principal in the Los Angeles, California, office of Jackson Lewis P.C. and a former member of the firm’s Board of Directors. She is co-leader of the Class Actions and Complex Litigation practice group and has extensive experience in all facets of employment litigation.

Photo of Scott P. Jang Scott P. Jang

Scott P. Jang is a principal in the San Francisco, California, office of Jackson Lewis P.C. He represents management in all areas of employment law, with particular focus on class actions and complex litigation. Scott is a member of the firm’s California Class…

Scott P. Jang is a principal in the San Francisco, California, office of Jackson Lewis P.C. He represents management in all areas of employment law, with particular focus on class actions and complex litigation. Scott is a member of the firm’s California Class and Private Attorneys General Act (PAGA) Action group, as well as a member of the California Advice and Counsel resource group.

Scott’s litigation experience covers the full spectrum of employment law. He has experience defending employers against claims for alleged discrimination, harassment, retaliation, wrongful termination, and unfair competition. He also has experience defending employers against various wage and hour claims, including claims for alleged overtime, meal and rest breaks, and business expense reimbursement. Scott’s trial practice includes having served as second chair in a bench trial in the U.S. District Court for the Northern District of California, in which a national beverage manufacturer fully prevailed on all claims for alleged misclassification. He has also served as first chair in several arbitrations for a national retailer for alleged wage and hour violations.