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Galarsa v. Dolgen California, LLC (CA5 F082404A 2/24/23) Arbitration | Post-Viking River Cruises 

Labor Code Private Attorneys General Act (PAGA) Arbitration Employment LawyerPlaintiff Tricia Galarsa sued her former employer, Dolgen California, LLC (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.  In November 2021, we affirmed the trial court’s order.  That affirmance was vacated by the United States Supreme Court when it granted Dollar General’s petition for writ of certiorari and remanded the case for further consideration in light of Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___ [142 S.Ct. 1906] (Viking River).

First, we conclude Viking River and the Federal Arbitration Act (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.  Second, the severability clause in the arbitration agreement allows the unenforceable waiver provision to be stricken from the arbitration agreement.  Third, we interpret the surviving provisions of the agreement to require arbitration of the PAGA claims that seek to recover civil penalties for Labor Code violations suffered by plaintiff.  Consequently, those claims must be sent to arbitration in accordance with the principles established by Viking River and the FAA.

Therefore, the order denying Dollar General’s motion to compel arbitration is reversed in part and affirmed in part.