Can't Waive the PAGA Till You're a PAG

Julian v. Glenair, Inc., No. B277064 (D2d4 Dec. 13, 2017)

By now, it’s well-settled that an employee’s claims under the Labor Code Private Attorney General Act, or PAGA, aren’t arbitrable, even if the employee’s contract says they are. But the Supreme Court decision that set that rule—Iskanian—had some dicta suggesting that its rationale did not apply to post-dispute agreements to arbitrate. The theory is, basically, that a PAGA claim belongs to the state, so the employee can’t agree to arbitrate it in an employment agreement. But once the employee is litigating on the state’s behalf she’s free to make any tactical decisions related to the litigation she deems advantageous, which includes the right, post dispute, to agree to send a case to arbitration.