Duane Morris Private Attorneys General Act Review – 2024

also asserted PAGA claims. Although many of the named plaintiffs stipulated that their individual claims were subject to arbitration, two named plaintiffs refused to do so, and the employer was thus required to file a motion to compel arbitration. As to one such named plaintiff, Reyes, the employer was unable to locate a copy of his personnel file, which included Reyes’s signed arbitration agreement. In support of its motion to compel Reyes’s claims to arbitration, the employer submitted declarations attesting that it was its regular business practice to provide all newly hired employees with an employment application containing an arbitration agreement and that, if the individual did not sign, the company’s practice was to withdraw the offer of employment. For his part, Reyes claimed he could not recall signing any arbitration agreement. The court noted that the employer had not put forth a declaration from an individual who conducted Reyes’s onboarding attesting that he in fact had received the arbitration agreement. Thus, it concluded that it needed to hold a one-day bench trial to resolve whether Reyes had in fact signed the arbitration agreement. The other named plaintiff who contested arbitration, Graham, had signed an arbitration agreement in 2014. However, in 2017, the employer circulated another arbitration agreement that permitted employees to submit an opt-out form. Although Graham had not signed the 2017 agreement, he did timely submit an opt-out form. The issue before the court was whether, in submitting the opt-out form, Graham has also opted out of his earlier 2014 commitment to arbitration. The employer argued that acceptance of the 2017 arbitration agreement, which Graham had not signed, was a condition precedent to effectuating the opt-out form and to modifying the 2014 agreement and alternatively argued that, even if Graham had signed the 2017 agreement, the submission of the opt-out form would not nullify his 2014 commitment to arbitration. Graham responded that the 2017 agreement expressly stated that it supplemented and modified any prior agreement, thus nullifying his 2014 agreement. The court declined to decide the issue. Because the 2014 agreement incorporated the AAA rules, which contained a delegation provision, the court concluded that the arbitrability issue would need to be resolved by the arbitrator. In Lawson, et al. v. Grubhub, Inc., 2023 U.S. Dist. LEXIS 160499 (N.D. Cal. Sept. 11, 2023), the court granted the defendant’s motion for partial summary judgment. The plaintiff, a delivery driver, filed a class action alleging that the defendant violated California law by misclassifying drivers as independent contractors and thereby failing to reimburse drivers for necessary expenditures, pay minimum wage, and pay overtime compensation. The court previously had found that the plaintiff was misclassified, and the defendant moved for partial summary judgment in order to limit the time period for which the plaintiff could seek PAGA penalties. The defendant argued that the time period for which the plaintiff could seek PAGA penalties must be limited to the span of his employment or from October 2015 to February 2016. Id . at *3. The defendant further contended that the court should not impose any PAGA penalties for Labor Code violations that occurred prior to the California Supreme Court's decision in Dynamex Operations W. v. Superior Court, 4 Cal. 5th 903 (Cal. 2018), because to do so would violate its due process rights. Id . at *3- 4. The court first ruled that the plaintiff, as a PAGA representative, was not limited to seeking PAGA penalties only for violations occurring during his employment with the defendant. The court explained that the PAGA's language and legislative intent allowed for the plaintiff to pursue penalties for violations that occurred before or after his employment. The court further stated that the plaintiff’s standing as an "aggrieved employee" was not confined to redressing injuries he personally suffered or violations during his employment period. Id . at *9. The court determined that the purpose of the PAGA is to empower employees to enforce the Labor Code on behalf of the state, and limitations on standing would undermine this purpose The court further opined that legislative history supported a broad interpretation of PAGA standing, ensuring recovery for employees who suffered violations beyond the plaintiff's own experience. For these reasons, the court denied the defendant’s motion for partial summary judgment. Where preemption is an available argument, defendants also can utilize it to successfully end far-reaching wage and hour lawsuits. For example, in Cota, et al. v. Fresenius USA, Inc., 2023 U.S. App. LEXIS 2171 (9th Cir. Jan. 27, 2023), the plaintiff, a driver, filed a class action together with a representative cause of action under the PAGA, against his employer asserting violations of the meal and rest break requirements (MRB Rules) of the California Labor Code. In December 2018, the Federal Motor Carrier Safety Administration declared the MRB Rules preempted by federal regulations as applied to certain commercial drivers, pursuant to its authority under 49 U.S.C. § 31141. The defendant thereafter moved for summary

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