Employment practitioners will be waiting with bated breath now that the California Supreme Court has granted the defendant’s petition for review in Uber Technologies, Inc. v. Adolph, S274671.  This is the second PAGA case California’s top court will review since the U.S. Supreme Court decision in Viking River Cruises v. Moriana, which held that the Federal Arbitration Act requires courts to enforce parties’ arbitration agreements and preempts conflicting state laws that invalidate contractual waivers of the right to assert representative claims under PAGA.  See our prior coverage of Viking River Cruises here.

In 2019, Plaintiff Erik Adolph filed a class action complaint against Uber in Orange County Superior Court claiming he and other drivers were misclassified as independent contractors. Uber sought to enforce its arbitration agreement with Adolph, but the court rejected Uber’s attempt to arbitrate whether Adolph was properly classified as an independent contractor and stay the PAGA claim. 

On appeal, the court found the arbitration agreement to be unenforceable, because it required Adolph to waive his representative claims.  It also held that a court, not an arbitrator, should decide whether the plaintiff is an employee or an independent contractor, which would determine Adolph’s standing to bring a PAGA representative action.

Uber subsequently filed its petition for review on May 20, 2022, and although Uber’s appeals and petition for review predated Viking River Cruises, the California Supreme Court granted Uber leave to file a supplemental five-page brief to address it.  Ultimately, the court unanimously granted the petition on July 20, 2022, potentially signaling the court’s keenness to respond to Viking River Cruises.  Stay tuned for the decision in light of Justice Sotomayor’s Viking River Cruise possible roadmap for California’s high court.