Viking River Cruises v Moriana:Supreme Court Hands Temporary Win to Employer's Challenge to California PAGA Actions.
Acknowledging that the State’s Labor and Workforce Development Agency (LWDA) lacked sufficient staff and resources to enforce California’s Labor Code, the California Legislature enacted the Private Attorneys General Act (PAGA), Cal. Lab. Code § 2698, which empowers a victim of Labor Code violations to sue her/his employer on behalf of other employees whose Labor Code rights were violated by the same employer. In this regard, PAGA allows unrelated Labor Code violations claims to be brought in the same suit under the name of a representative PAGA plaintiff, regardless of whether the named plaintiff suffered those violations.
On June 15, 2022, the United States Supreme Court issued its highly anticipated decision in Viking River Cruises, Inc. v Moriana concerning whether the Federal Arbitration Act (FAA) preempts California’s wholesale prohibition of PAGA action waivers in arbitration agreements. In Viking River Cruise, Moriana, a former Viking employee, brought a PAGA action against Viking for her individual Labor Code violation as well as numerous unrelated Labor Code violations she alleged Viking committed against other employees. Pursuant to the terms of a mandatory arbitration agreement between Moriana and Viking that waived Moriana’s right to pursue a representative PAGA action in court, Viking moved to compel Moriana to arbitrate her individual PAGA claim and to dismiss the representative PAGA action (those violations suffered by other employees). Applying the holding in Iskanian v. CLS Transp. Los Angeles, LLC , the California courts rejected Viking’s position and held that categorical waivers of PAGA standing is contrary to public policy and that PAGA actions cannot be “split” between arbitrable individual PAGA actions and non-arbitrable representative actions.
In reversing the California Court of Appeal, the majority opinion, penned by Justice Alito, concluded that a wholesale waiver of PAGA actions is not preempted by the Federal Arbitration Act (FAA), but that the FAA preempts the California rule precluding splitting PAGA actions between individual arbitrable and representative non-arbitrable claims. Viking River Cruise hands a temporary victory to employers using arbitration agreements that waive PAGA actions because PAGA plaintiffs will be forced into arbitration and their Labor Code claims will be limited to the violations she or he personally suffered. As such, employees will be dissuaded from pursuing them. The majority opinion, however, left open the door for the California Legislature to amend PAGA to give standing to individual plaintiffs to pursue representational claims in court, standing that the Court found lacking under PAGA’s current statutory language. See Justice Sotomayor’s concurring opinion providing this amendment roadmap.
Although employers are claiming a win, the majority opinion repeatedly acknowledges that the FAA is rooted in the principle that “arbitration is strictly a matter of consent” of the parties. The opinion stresses that the FAA would lose its legitimacy if only one party wanted to arbitrate and the other party had no choice but to submit. This gives us some hope that California’s recently enacted ban on mandatory arbitration agreements as a condition of employment (Labor Code § 432.6) just might survive current legal challenges working their way through the courts. Stay tuned.
While leaving this year’s inspiring Lawyers Club of San Diego General Counsel roundtable, I fortunately took home a copy of Emily Chang’s Brotopia: Breaking Up the Boys’ Club of Silicon Valley. Chang’s exquisitely researched deep dive into women’s nearly complete exclusion from the modern technology industry is a must read for Lawyers Club members. Brotopia starts with the tale of male USC computer scientists in the 1970s nonchalantly using a Playboy centerfold portrait to develop the technology that digitizes images (the modern JPEG). This image became ubiquitous in computer labs and remains in circulation. When Chang questioned the team leader, William Pratt, about the propriety of using a Playboy centerfold photograph to develop this technology, Pratt responded that using the photo was not sexist because Playboy had “high quality photos” and since there were no women in the class, there was no one to be offended. Sound familiar?
From there, Chang takes her readers on an action-packed ride starting in the 1950s when computer programmers were predominately women! Not surprisingly, as programmers’ salaries rose and the computer industry grew lucrative, the industry pushed women out or excluded us by using a tragically flawed “programmer aptitude test” developed by two male psychologists who “determined” that good programmers 1) like to solve puzzles and 2) dislike people! Because women tested as liking people at a much higher rate than men, this pseudoscience concluded that women were naturally inferior programmers.
By selecting for an antisocial nerd stereotype, women were profiled out of the technology workforce. This industry composition contributed to the cultural designation that computers were for boys, compounding the growing scarcity of female computer engineers.
A technology community insider, Chang walks us through the making of Silicon Valley companies such as Uber, PayPal, Google, Twitter, Facebook and numerous VC groups that fund them. She brings to life the stories of how difficult it has been and remains for women to enter these rarified spaces. Once there, women routinely experience intense sexism, sexual harassment, marginalization, general hostility and crippling double standards. Their tenures are short lived. Still, Chang makes a convincing case that we can and must overcome these challenges. Chang’s access to the men (and the smattering of women) at the top of these ventures informs her thesis. Chang reminds us that technology shapes nearly every aspect of human life, yet it remains nearly exclusively male conceived and designed. Would these technologies be better and less destructive if women had helped to shape them? Chang emphatically answers “yes.” With punchy, insightful and humor-filled writing, Brotopia maps out a plan for a better, more inclusive future for this world shaping industry. I encourage you to read it.
I celebrate The Right Livelihood Foundation’s selection of Bryan Stevenson for this year’s honoree. A highlights of my time with Public Counsel was hearing Bryan Stevenson’s acceptance speech at the 2016 William O. Douglas Award Dinner. He spellbound the room with his passionate plea that we must do more to confront the injustices of systemic racism in the United States. I had the honor of meeting Bryan, as the Award Dinner featured my work enjoining Pomona’s unlawful practice of seizing and destroying the personal property of its residents experiencing homelessness. Mr. Stevenson stands as a towering example of what attorneys can accomplish when we put the fight for justice before all else. Here's a picture of Bryan Stevenson with my clients and my wonderful colleague, Azadeh Hosseinian, who worked so hard on the case.