In December 2019, Jazmine Quintero applied for employment with Dolgen California, LLC (Dollar General), a wholly owned subsidiary of Dollar General Corporation. She was employed by Dollar General from December 14, 2019, until January 4, 2021, when she resigned.

As part of the application and hiring process, Quintero accessed Dollar General’s web-based Express Hiring system, and electronically signed Dollar General’s arbitration agreement. In addition to other provisions, the agreement provided “Class and Collective Action Waiver: You and Dollar General may not assert any class action, collective action, or representative action claims in any arbitration pursuant to this Agreement or in any other forum.”

Quintero sued her former employer, Dollar General, to recover civil penalties under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) for various Labor Code violations suffered by her or by other employees. Dollar General moved to compel arbitration, which the superior court denied.

Dollar General appealed. The order denying Dollar General’s motion to compel arbitration was reversed in part and affirmed in part in the unpublished case of Quintero v. Dolgen California, LLC – F083769 (February 2023).

An issue in this appeal is whether plaintiff’s PAGA claims seeking civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in court. The issue is pending before the California Supreme Court. (Adolph v. Uber Technologies, Inc. (2022) (Aug. 1, 2022, S274671) [2022 Cal. Lexis 5021].)

The Court of Appeal has already decided that and other issues involving Dollar General’s arbitration agreement in Galarsa v. Dolgen California, LLC, -F082404 (Feb. 2, 2023 ), which it did not publish “because it soon will be superseded by the decision in Adolph.”

It also said that in Silva v. Dolgen California, LLC (Oct. 21, 2022, E078185) review granted Jan. 25, 2023, S277538 – another case involving Dollar General’s arbitration agreement – “our Supreme Court granted review and deferred briefing pending a decision in Adolph, which suggests the court will do the same in Galarsa and this case.”

Thus a disposition of this case by a memorandum opinion in accordance with the California Standards of Judicial Administration, Standard 8.1 was found to be appropriate.

Conclusion One: Viking River and the FAA (9 U.S.C. § 1 et seq.) do not invalidate the rule of California law that a provision in an arbitration agreement purporting to waive an employee’s right to pursue representative actions is not enforceable as to representative claims pursued under PAGA. (See Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 [“an arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy”], abrogated on another ground by Viking River, supra, 142 S.Ct. 1906.)

Conclusion Two: The severability clause in the arbitration agreement allows the unenforceable waiver provision to be stricken from the agreement. (Viking River, supra, 142 S.Ct. at p. 1925.)

Conclusion Three: The provisions of the arbitration agreement remaining after the invalid waiver of representative claims is stricken cover the PAGA claims that seek to recover civil penalties for Labor Code violations suffered by plaintiff.

Conclusion Four: Plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in court.

Based on Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___ [142 S.Ct. 1906] (Viking River) and the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.), the Court of Appeal concluded the parties’ agreement requires arbitration of plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by plaintiff.

On an issue of California law currently pending before the California Supreme Court, it concluded plaintiff’s PAGA claims that seek to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in the superior court.

Employment Law Arbitration Cases Queue up in Cal Supreme Court