Including PAGA Representative Action Waivers In Arbitration Agreements Post-Iskanian

After the California Supreme Court's recent decision in Iskanian v. CLS Transportation, which held that PAGA representative action waivers are unenforceable under California law, employers have struggled with whether to retain such waivers in their arbitration agreements.  The answer to whether such waivers should be retained is not as straightforward as one might expect.

First of all, notwithstanding Iskanian, it is not a foregone conclusion that such waivers are unenforceable. Several California Federal District Court decisions have declined to follow Iskanian and have enforced a PAGA representative action waiver. In the latest decision, Langston v. 20/20 Companies,the court explained that while the California Supreme Court's interpretation of PAGA is controlling, but its interpretation of the Federal Arbitration Act is not – federal courts are left to interpret federal statutes like the FAA. Accordingly, the court in Langston declined to follow Iskanian's