The California Supreme Court heard oral argument today in Adolph (Erik) v. Uber Technologies, Inc., S274671, on the question of whether Private Attorneys’ General Act claims under Labor Code section 2698, et seq. (PAGA) can be brought on behalf of other employees in court despite a plaintiff’s agreement to arbitrate his/her individual PAGA claims.
On February 15, 2023, the Ninth Circuit struck down AB 51, a California statute that imposed criminal and civil penalties against employers who required employees to enter into an arbitration agreement as a condition of employment, finding the statute to be an “unacceptable obstacle to the accomplishment and execution of the full purposes and objectives” of the Federal Arbitration Act (“FAA”). Chamber of Commerce of the United States of America, et al. v. Bonta, et al., No. 20-15291 (9th Cir. 2023).
Continue Reading Non-Negotiable Arbitration Agreements May Be Required as a Condition of Employment
Electronic monitoring of employees’ remote work has increased in the last few years as employers have become concerned with employee productivity during the Covid-19 pandemic. Monitoring technology can track the websites an employee visits and for how long, the number of keystrokes or mouse movements an employee has in a given time period, when an employee is away from their computer and even what an employee is typing, reading or watching. Though generally legal, the use of this technology has prompted California to propose a bill aimed at, among other things, restricting employers’ use of such technology to specific times of day, activities and locations.
As we predicted in our prior post (here), California passed new pay transparency legislation requiring employers to report contractor compensation data and list employee pay ranges (salary or hourly rates of pay) on job postings. Effective January 1, 2023, Senate Bill 1162, known as the Pay Transparency for Pay Equity Act, mandates that employers submit pay data reports to the California Civil Rights Department revealing compensation paid to contractors broken down by gender, race, and ethnicity. Following Colorado, Washington, and New York City, California employers with 15 or more workers also must disclose salary ranges on all job advertisements, whether posted by the employer or a third party. Employers of any size must provide existing employees with the salary range for their positions if requested.
The three-judge panel that decided AB 51 was (mostly) lawful, and that employers could not retaliate against employees who refused to sign arbitration agreements as a condition of employment, withdrew the decision and agreed to take another look. On August 22, 2022, two of three members of the panel that decided Chamber of Commerce of the U.S. v. Bonta voted to withdraw the ruling sua sponte and agreed to a rehearing in light of the U.S. Supreme Court’s ruling in Viking River Cruises v. Moriana.
Continue Reading Prohibiting Mandatory Arbitration: Ninth Circuit Agrees to a Re-Do
Widening the split among circuit courts, the Third Circuit recently rejected attempts by two out-of-state employees to join an FLSA collective action as opt-in plaintiffs because their claims did not “arise out of or relate to” the defendant’s contacts with the state in which the case is pending.
Continue Reading The Third Circuit Decides “We’re (Not) Nationwide”
Employment practitioners will be waiting with bated breath now that the California Supreme Court has granted the defendant’s petition for review in Uber Technologies, Inc. v. Adolph, S274671. This is the second PAGA case California’s top court will review since the U.S. Supreme Court decision in Viking River Cruises v. Moriana, which held that the Federal Arbitration Act requires courts to enforce parties’ arbitration agreements and preempts conflicting state laws that invalidate contractual waivers of the right to assert representative claims under PAGA. See our prior coverage of Viking River Cruises here.
Continue Reading California Supreme Court to Address Viking River Cruises
Is the right to compel arbitration waived only when the plaintiff can show prejudice from the defendant’s inconsistent actions and delay? In Morgan v. Sundance, Inc., No. 21-328 (2022), the Supreme Court found that the Federal Arbitration Act (“FAA”) does not permit courts to create tests to favor arbitration over litigation, and that a showing of prejudice is not required for a claim of waiver.
Continue Reading U.S. Supreme Court Rejects Prejudice Element for a Claim of Waiver