By: Phillip J. Ebsworth and Justin T. Curley
Seyfarth Synopsis: The Fourth Appellate District provides further support that plaintiffs do not lose representative standing once their individual PAGA claims are compelled to arbitration. In doing so, it rejected the argument that the language of PAGA requires a plaintiff to be able to maintain both individual and representative PAGA claims in the same forum.
The Fourth Appellate District held, like the Fifth District in Galarsa, that a PAGA plaintiff compelled to individual arbitration still retains standing to pursue a PAGA representative action in state court. The Fourth District, however, addressed the “and” language in the PAGA statute and PAGA’s legislative history distinguishing PAGA standing from “general public” standing.
The employer’s argument was that PAGA only authorizes an aggrieved employee to file an action “on behalf of himself or herself and other current or former employees.” As a result, the employer argued a plaintiff who cannot maintain an individual PAGA claim in court also cannot maintain a representative PAGA action in court. The Court dismissed this argument pointing to Kim v. Reins where the California Supreme Court held that because the individual Labor Code claims (which had been sent to arbitration) and the PAGA action (which remained in court) were part of the “same lawsuit” standing was not lost simply because the claims are being pursued in different fora. As a result, the Court concluded that the plaintiffs satisfied the standing requirement because they were pursuing a single PAGA action “on behalf of [themselves] and other current or former employees,” albeit across two fora.