Cortez v. Doty Bros. Equipment Co.

A collective bargaining agreement explicitly requires arbitration of wage and hour claims by referencing a wage order; so long as a Private Attorney General Act claim survives, decertification of a class is not immediately appealable.

Following Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, this decision holds that an order dismissing class action allegations from a worker’s wage and hour lawsuit upon entry of an order compelling arbitration is not immediately appealable under the “death knell” doctrine when the plaintiff has also alleged a PAGA claim that the trial court did not order to arbitration but rather stayed pending the outcome of the arbitration.  A collective bargaining agreement may require arbitration of statutory claims, but to do so, the CBA must be explicit, clear and unmistakable in doing so.  In this case, the CBA required arbitration of any dispute arising under Wage Order 16.  Even though ordinarily to meet this standard, the CBA must identify the particular statutes, claims under which are to be arbitrated, this provision was sufficient to require arbitration of claims under Labor Code sections that deal with the same subjects as portions of Wage Order 16. That is because, the only way a worker can enforce the Wage Order is by bringing a claim for violation of the associated Labor Code section.  Thus, plaintiff’s claims for overtime pay, meal and rest break violations, issues covered by the Wage Order, were properly ordered to arbitration.  However, the Wage Order does not address prompt pay on termination, so the worker’s claim for waiting time penalties under Lab. Code 202 and 203 was not arbitrable.  The trial court correctly ruled that the CBA did not allow classwide arbitration.   Absent language in the arbitration provision itself or extrinsic evidence establishing the parties’ agreement to arbitrate classwide claims, only individual claims may be arbitrated.  Silence on the issue may not be construed as agreement. While the federal circuits are split over whether a ban on classwide arbitration violates the NLRA’s protection of concerted activity by employees, the California Supreme Court upheld a ban on classwide arbitration against attack on this ground in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348.

California Court of Appeal, Second District, Division 7 (Perluss, P.J.); August 15, 2017 (published September 1, 2017); 2017 WL 3484719

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