Uber Technologies Inc. has lodged a petition for a writ of certiorari with the nation’s high court after the California Supreme Court declined to review a state appellate court’s decision adversely impacting it. Specifically, Uber seeks review of California precedent exempting certain employment law claims made under the state’s Private Attorney General Act (PAGA) from the Federal Arbitration Act (FAA). The petition is nearly identical to one filed by DoorDash Inc. earlier this year, as previously reported.
This week’s request explains that respondent Jonathon Gregg signed up as an Uber driver and accepted the relevant terms of use in October 2016, including an arbitration provision which he had the opportunity to opt out of, but did not. Uber notes that the provision specifically enumerates PAGA claims, stating that “‘You and Uber agree not to bring a representative action on behalf of others under PAGA in any court or in arbitration.’”
In August 2018, Gregg filed a complaint against Uber in pursuit of civil penalties under PAGA on behalf of himself and other current and former drivers allegedly misclassified as independent contractors rather than employees. Uber moved to compel arbitration, which the trial court denied based on California precedent, Iskanian v. CLS Transportation Los Angeles LLC.
An appellate panel affirmed, stating that “Iskanian held that a ban on bringing PAGA actions in any forum violates public policy and that this rule is not preempted by the FAA because the claim is a governmental claim,” and that a 2018 Supreme Court case called Epic Systems “did not consider this issue and thus did not decide the same question differently.” The California Supreme Court denied Uber’s request for review in June.
In this week’s petition, Uber argues, as DoorDash did, that California law conflicts with Supreme Court precedent interpreting the FAA. “Iskanian’s holding that PAGA claims cannot be arbitrated on an individual basis even when an employee and an employer have agreed to resolve all disputes through individual arbitration cannot survive Epic Systems,” Uber says. The technology company further explains that the Supreme Court’s interpretation of the federal law requires courts to enforce arbitration provisions according to their terms, affording individual arbitration agreements almost absolute protection.
Uber also argues that the court should grant its petition because the California rule will remain in place absent intervention. Just as DoorDash contended in its petition, whether PAGA claims are outside the reach of the FAA is “an important and recurring issue.” In support of this contention, Uber asserts that the California Supreme Court has passed up the opportunity to revisit Iskanian at least nine times.
In Uber’s case, Gregg has until October 25 to respond to the petition. In DoorDash’s case, the petition, response waived, was distributed for conference scheduled to take place on October 8.
Uber is represented by Littler Mendelson P.C. and Gibson, Dunn & Crutcher LLP.
