Wednesday, September 19, 2012

California Supreme Court Grants Review in Critical Case Regarding Arbitration Class Waivers

Today, the California Supreme Court granted the employees' petition for review in Iskanian v. CLS Transportation of Los Angeles (S204032). This case will determine the real impact of ATT Mobility v. Concepcion on California's workers - in particular: the extent to which employers can include arbitration clauses which waive all class action rights in pre-dispute agreements; whether such agreements can cover claims under the Private Attorney General Act (PAGA), Cal. Lab. Code sec. 2698, et seq.; whether the National Labor Relations Act (as interpreted by the National Labor Relations Board in the D.R. Horton decision) continues to protect workers' right to come together for their mutual aid and protection, after Concepcion; and generally, whether the seminal case of Gentry v. Superior Court (2007) 42 Cal.4th 443, carries any weight post-Concepcion. The Iskanian Court of Appeal decision, from the employees' perspective, had decided all of these questions wrongly (i.e., that Gentry was undermined, D.R. Horton of no consequence, and class waivers permissible, even as to PAGA) and so the grant of review is a great source of relief to workers and their advocates. The Iskanian decision had split the Courts of Appeal on these issues, because previously, Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, review denied October 19, 2011, cert. denied April 16, 2012, had decided several of these issues favorably to workers. Today's grant of review provides hope that Brown will remain the law of the state. More to come on Iskanian in another post.

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