Amicus Curiae Brief — Viking River Cruises, Inc., Petitioner v. Angie Moriana

Supreme Court briefMar 9, 2022

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No. 20-1573

In The

Supreme Court of the United States

Viking River Cruises, Inc.,

Petitioner,

Angie Moriana,

Respondent.

On Writ of Certiorari to the

California Court of Appeal

BRIEF OF AMICI CURIAE CALIFORNIA

RURAL LEGAL ASSISTANCE, INC. and

CALIFORNIA RURAL LEGAL ASSISTANCE

FOUNDATION IN SUPPORT OF RESPONDENT

Cynthia L Rice

Counsel of Record

CALIFORNIA RURAL LEGAL

ASSISTANCE, INC.

1430 Franklin Street, Suite 103

Oakland, CA 94612

(510) 267-0762, Ext.1001

crice@crla.og

Corrie Arellano

Sandra Aguila

CALIFORNIA RURAL LEGAL

ASSISTANCE, INC.

2050 S. Broadway, Suite G

Santa Maria, CA 93454

(805) 922-4564

Estella Cisneros

Anali Cortez Bulosan

CALIFORNIA RURAL LEGAL

ASSISTANCE, INC.

3747 E. Shields Avenue

Fresno, CA 93726-7029

(559) 441-8721

Verónica Meléndez

CALIFORNIA RURAL LEGAL

ASSISTANCE FOUNDATION

2210 K Street, Suite 201

Sacramento, CA 95816

(916) 446-7994

vmelendez@crlaf.org

Counsel for Amici Curiae

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

TABLE OF CONTENTS

Page

IDENTITY AND INTEREST OF

AMICI CURIAE...............................................

INTRODUCTION AND

SUMMARY OF ARGUMENT.........................

ARGUMENT........................................................

I. FOR OVER A HUNDRED YEARS,

CALIFORNIA HAS CREATED A

STATUTORY ENFORCEMENT

SCHEME TO PROTECT THE

WORKER AND, IN TURN, THE

PUBLIC INTEREST..................................

A. California Began Regulating

Employment Relationships To

Further Workers’ Common Interest

And Promote The State’s Interests

In Preserving The Common Good........

B. California Has Incentivized

Compliance With Minimum

Employment Protections Through

State Enforcement and Civil Penalties..

1. California Established Civil

Penalties Enforceable Only by

the State.........................................

2. California Established A Labor

Law Enforcement Division............

II. WIDESPREAD VIOLATIONS OF

CALIFORNIA’S LABOR LAWS AND

THE LACK OF STATEWIDE

RESOURCES PROMPTED

CALIFORNIA TO ENACT PAGA.............

TABLE OF CONTENTS—Continued

Page

III. THE CIVIL PENALTIES

RECOVERABLE UNDER PAGA ARE

THE STATE’S AND NOT SUBJECT TO

CONTRACTUAL WAIVER BY

INDIVIDUAL EMPLOYEES.....................

A. PAGA Expands the State’s

Enforcement Reach By Allowing

Individual Aggrieved Employees to

Enforce Civil Penalties for the State....

B. PAGA Was Created To Protect The

Public Interest, Not The Personal

Interests Of An Individual Employee.

The State Retains Significant Control

Over a PAGA Claim..............................

C. Employers Have The Right To Cure a

Violation, Which If Done, Stops a

PAGA Action..........................................

D. The Number Of Interventions Or

Objections Submitted By The State

Is Not An Indication The System Is

Broken, But That It Is Working...........

IV. PAGA, AS AN ELEMENT OF THE

STATE’S ENFORCEMENT STRATEGY,

IS AN EXERCISE OF ITS POLICE

POWERS NECESSARY TO MAXIMIZE

THE ENFORCEMENT OF LABOR

PROTECTIONS..........................................

CONCLUSION.....................................................

iii

TABLE OF AUTHORITIES

Page

Cases

Allied-Bruce Terminix Cos. v. Dobson,

513 U.S. 265 (1995)..........................................

Arias v. Superior Court,

5 Cal. Rptr. 3d 588 (Cal. 2009)........................ 4, 19

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (Cal. 2011)..................................

Bond v. United States,

564 U.S. 211 (2011)..........................................

Brown v. Ralph’s Grocery,

128 Cal. Rptr. 3d 854 (2011)............................

Dep’t of Revenue of Or. v. ACF Indus.,

510 U.S. 332 (1994)..........................................

Duncan v. Hawn,

37 P. 626 (Cal.1894).........................................

Espinoza, Elisa Valerio et al. v. West Coast

Tomato Growers, LLC, U.S.D.C. Southern

District of California, Case No.: 3:14-cv02984-JLS-KSC (2014)....................................

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934).........................................

In re Application of Miller,

162 Cal. 687 (Cal. 1912)...................................

In re Application of Moffett,

64 P.2d 1190 (Cal. Ct. App. 1937)...................

In re Petition of Ballestra,

161 P. 120 (Cal. 1916)......................................

TABLE OF AUTHORITIES—Continued

Page

In re. Spencer,

86 P. 896 (Cal. 1906)........................................

Iskanian v. CLS Transp. Los Angeles, LLC

173 Cal. Rptr. 3d 289 (Cal. 2014)................ passim

Kansas v. Garcia,

140 S. Ct. 791 (2020)........................................ 29, 30

Kilby v. CVS Pharm., Inc.,

201 Cal. Rptr. 3d. 1 (Cal. 2016).......................

Kindred Nursing Cttrs. Ltd. P’ship v. Clark,

137 S.Ct. 1421 (2017)......................................

Lopez-Gutierrez et al. v. Foothill Packing,

Monterey County Superior Court,

Case No. 17CV001629 (2017)..........................

Martinez v. Combs,

109 Cal. Rptr. 3d 514 (Cal 2010)..................... 7, 8, 9

Moniz v. Adecco USA, Inc.,

287 Cal. Rptr. 3d 107 (Cal. Ct. App. 2021)..... 19, 20

Moore v. Indian Spring Channel

Gold Mining Co.,

174 P.378, (Cal. Ct. App. 1918)...................... 7, 9, 22

Murphy v. NCAA,

584 U.S. 138 (2018)..........................................

Nat’l Fed’n of Indep.Bus. v. DOL, OSHA,

Nos. 21A244, 21A247,

142 S. Ct. 661 (2022).......................................... 24, 26

National Federation of Independent Business

v. Sebelius,

567 U. S. 519 (2012).........................................

New York v. United States,

505 U. S. 144 (1992)......................................... 28, 29

TABLE OF AUTHORITIES—Continued

Page

O’Connor v. Uber Techs., Inc.,

201 F. Supp. 3d 1110 (N.D. Cal. 2016)...........

Printz v. United States,

521 U.S. 898, 920 (1997)..................................

Shalz v. Union Sch. Dist.,

137 P.2d 762 (Cal. Ct. App. 1943)................... 9, 12

Smith v. Superior Court,

45 Cal. Rptr. 3d 394 (Cal. 2006)...................... 7, 11

Tenorio et al. v. Gallardo et al.,

U.S.D.C., Eastern District of California,

Case No. 1:16-CV-00283-DAD-JLT (2016).....

Terminal Assn. v. Trainmen,

318 U.S. 1 (1943)..............................................

Vilcapoma v. Western Range,

Imperial County Superior Court

Case No.: ECU07266 (2014)............................

W. Coast Hotel Co. v. Parrish,

300 U.S. 379 (1937)..........................................

Wyeth v. Levine, 555 U.S. 565 (2009)..................

ZB, N.A. v. Superior Court,

252 Cal. Rptr. 3d 228 (Cal. 2019)....................

Statutes

Federal Arbitration Act..................................... passim

8 U.S.C. § 1101(a)(h)(ii)(a)...................................

29 U.S.C. § 218 (a)...............................................

68 P.L. 401, 43 Stat. 883, 68 Cong. Ch. 213.......

TABLE OF AUTHORITIES—Continued

Page

Cal. Lab. Code § 50.5 .......................................... 13, 28

Cal. Lab. Code § 90.5(a).......................................

Cal. Lab. Code § 98..............................................

Cal. Lab. Code § 98.3...........................................

Cal. Lab, Code § 202............................................

Cal. Lab. Code § 203............................................

Cal. Lab. Code § 204............................................

Cal. Lab. Code § 210............................................ 10, 12

Cal. Lab. Code § 212............................................

8, 9

Cal. Lab. Code § 215............................................

Cal. Lab. Code § 216............................................

Cal. Lab. Code § 218............................................ 10, 12

Cal. Lab. Code § 218.5.........................................

Cal. Lab. Code § 226............................................

Cal. Lab. Code § 226(e)........................................

Cal. Lab. Code § 226(f).........................................

Cal. Lab. Code § 226.3.........................................

Cal. Lab. Code § 226.7......................................... 10, 11

Cal. Lab. Code § 510(g)........................................

Cal. Lab. Code § 558............................................

Cal. Lab. Code § 1021..........................................

Cal. Lab. Code § 1194..........................................

vii

TABLE OF AUTHORITIES—Continued

Page

Cal. Lab. Code § 1194.2.......................................

Cal. Lab. Code § 1197.1.......................................

Cal. Lab. Code § 1199..........................................

Cal. Lab. Code § 1308..........................................

Cal. Lab. Code § 1403..........................................

Cal. Lab. Code § 2699(a)......................................

Cal. Lab. Code § 2699(f)....................................... 18, 19

Cal. Lab.Code § 2699(l)(1)...................................

Cal. Lab.Code § 2699(l)(2)...................................

Cal. Lab. Code § 2699.3(a)(1)(A).........................

Cal. Lab. Code § 2699.3(b)(4)..............................

Cal. Lab. Code § 2699.3(c)(1)(A)..........................

Cal. Lab. Code § 2699.3(c)(2)(A)..........................

Cal. Lab. Code § 2699.3(c)(3)...............................

Cal. Lab. Code § 2699.5.......................................

Cal. Lab. Code § 6319..........................................

Cal. Lab. Code §§ 6300-9104...............................

Cal. Pen. Code § 487m.........................................

Cal. Stats. 1939, ch. 276, § 1...............................

Cal. Stats. 1999, ch. 134, § 4...............................

Cal. Stats. 2003, ch. 906, § 1......................... 15, 19, 22

Cal. Stats. 2003, ch. 906, § 1(d)...........................

viii

TABLE OF AUTHORITIES—Continued

Other Authorities

Page

Annette Bernhardt & Ruth Milkman, Broken

Laws, Unprotected Workers: Violations of

Employment and Labor Laws in America’s

Cities, (Sept. 21, 2009).....................................

Daniel Flaming & Pascale Joasart,

Workers Without Rights The Informal

Economy in Los Angeles, Economic

Roundtable Briefing Paper (2002)...................

Daniel Flaming, et al., Hopeful Workers,

Marginal Jobs: LA’s Off-The-Books Labor

Force, Broken Laws, Unprotected Workers:

Violations of Employment and Labor Laws

in American Cities, The Economic

Roundtable (2005)............................................

David Cooper & Teresa Kroeger, Employers steal

billions from workers’ paychecks each year,

Economic Policy Institute (May 10, 2017)...... 14, 15

Department of Industrial Relations, Cal/OSHA

Recruiting and Hiring, Cal/OSHA,.................

Department of Industrial Relations, Job Search

Results, Department of Industrial Relations,

CalCareers (2022)............................................

Dina Mishra, Child Labor as Involuntary

Servitude: The Failure of Congress to

Legislate Against Child Labor Pursuant to

the Thirteenth Amendment in the Early

Twentieth Century,

63 Rutgers L. Rev. 59 (2010)...........................

TABLE OF AUTHORITIES—Continued

Page

Eli Wolfe, We’re Being Robbed’: Wage Theft in

California Often Goes Unpunished by State,

KQED (Oct. 16, 2019)......................................

Farida Jhabvala Romero, California Workers

Face Years-Long Waits for Justice in Wage

Theft Cases, State Data Shows,

KQED (Mar. 12, 2022).....................................

Job Search Results, Department of Industrial

Relations, CalCareers (2022)...........................

Lila Garcia-Brower, 2018-2019 The Bureau of

Field Enforcement Fiscal Year Report,

California Labor Commissioner’s Office.........

Nadia Lopez, Wage theft is a serious issue in

California. Here’s who it impacts most, how

to get help, Fresno Bee (Feb. 10, 2022)........... 15, 24

Rachel Deutch, Rey Fuentes, Tia Koorse,

California Hero Labor Law: The Private

Attorney’s General Act fights wage theft

and recovers millions from lawbreaking

corporations (Feb. 2020)..................................

Ruth Milkman, et al., Wage Theft and Workplace

Violations in Los Angeles: The Failure of

Employment and Labor Law for Low Wage

Workers, UCLA Labor Center (2010)..............

Victoria Hassid, Labor Enforcement Task

Force Report to the Legislature (2019)............ 15, 16

TABLE OF AUTHORITIES—Continued

Rules

Supreme Court Rule 37.3(a)................................

Page

Regulations

Cal. Code Regs. § 1170 (1999)..............................

Constitutional Provisions

U.S. Const., Amdt. 10..........................................

Former Cal. Const. art. XX, section 17-1/2.........

IDENTITY AND INTEREST

OF AMICI CURIAE 1

California Rural Legal Assistance, Inc. (“CRLA”), a

non-profit legal services organization, has provided

services to rural communities since 1966. Through its

16 field offices, CRLA has represented tens of thousands of low-wage workers, many of whom have legitimate fears of retaliation that prevent them from

personally filing or reporting a labor law violation.

While many cases are brought individually, representative actions, such as the Private Attorney General

Act (“PAGA”), provide redress for our clients and their

co-workers, whose wages were stolen and working

conditions compromised by employers who break the

law. CRLA has recovered tens of millions of dollars in

wages, damages and penalties for violations of California’s basic labor law protections and, put money

back into the pockets of the workers who raise or serve

our food, clean our businesses and care for our aged.

PAGA has proved an effective, and often the only

mechanism for bringing these claims.

California Rural Legal Assistance Foundation (“CRLAF”) is a legal nonprofit that for over three decades

has represented California’s immigrant farmworkers

and other low-wage workers in class, representative,

and PAGA actions, and engaged in regulatory and legislative advocacy on their behalf. CRLAF works with

California state agencies to address the most pressing

needs of the farmworker community in labor, housing,

This brief is submitted with consent of the parties under

Supreme Court Rule 37.3(a). This brief was not authored in

whole or in part by counsel for a party. No person or entity, other

than the Amici, their members or their counsel, made any monetary contribution to the preparation or submission of the brief.

safety, and health by bringing complaints that prompt

state action. Because of the widespread incidence of

worker exploitation, wage theft, health and safety violations, and the ineffectiveness of individual actions

and limited state enforcement resources, CRLAF

sponsored PAGA in 2003, and provided testimony on

the dire need for the bill.

CRLA and CRLAF regularly file PAGA lawsuits involving unpaid wages and workplace health and safety violations. Agricultural workers are seasonal, and

fear termination or being passed over for recall if they

complain or participate in a complaint. With the dramatic increase of the H-2A2 program, we have seen a

dramatic increase in labor violations. For these workers to come forward and voice their individual claims

could mean, no job, no home, and immediate loss of

the right to work in the United States. Using PAGA,

millions of dollars have been recovered for workers

and the State of California in egregious cases involving agricultural workers. Most of these workers speak

little English and have low literacy in any language.

These cases include, inter alia, a case alleging offthe-clock work and minimum wage and overtime violations suffered by some 2,200 H-2A lettuce workers

resolved for $2.2 million, with $1.7 million distributed

to plaintiffs, the State, and other aggrieved employees.3 Tomato workers denied rest and meal breaks

and alleged health and safety violations related to

production standards, ergonomics, and heat illness,

The H-2A program allows agricultural employers to recruit

and hire foreign workers who are admitted to the U.S. solely for

the purpose of performing work for that employer. See 8 U.S.C.

§ 1101(a)(h)(ii)(a).

Lopez-Gutierrez v. Foothill Packing, Monterey County Superior

Court, Case No. 17CV001629 (2017).

recovered $635,000.00 for other aggrieved employees

and the State.4 Vineyard and orchard workers paid

nothing for the last weeks of work and regularly denied meal periods settled their case against the grower for $300,000.00, with $200,000.00 distributed to

workers and the State.5 An H-2A sheepherder recruited from Peru was forced to work in haying operations

while being paid the significantly lower sub-minimum

wage allowed for sheepherders. He sued and recovered $250,000.00 in underpaid wages and penalties

for himself, 30 other workers, and the State.6

After this Court’s decision in AT&T Mobility LLC

v. Concepcion, 563 U.S. 333 (2011) we encountered for

the first time, arbitration clauses signed by our lowincome clients. The clauses were buried in multi-page

documents and signed under the understanding it

was a condition of employment. Until the California

Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles (“Iskanian”),7 we were forced to

challenge arbitration agreements purporting to waive

the right to bring a representative action under situations where our clients genuinely had no idea they

had waived any right. The clear intent of these provisions was to destroy the ability to pursue a representative action. The Iskanian decision restored that crit-

Espinoza v. West Coast Tomato Growers, LLC, U.S.D.C.

Southern District of California, Case No.: 3:14-cv-02984-JLSKSC (2014).

Tenorio v. Gallardo, U.S.D.C., Eastern District of California,

Case No. 1:16-CV-00283-DAD JLT(2016).

Vilcapoma v. Western Range, Imperial County Superior

Court Case No.: ECU07266 (2012).

Iskanian v. CLS Transportation, Los Angeles, 173 Cal. Rptr.

3d 289, 312-313 (Cal. 2014).

ical means of redress. Reversal of the holding in

Iskanian would likely prompt another surge in arbitration agreements and severely and negatively impact CRLA and CRLAF’s work to combat rampant violations of the wage and hour and workplace health

and safety rights, and improve the working conditions

for low-wage workers in rural California.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The multitude of consistent decisions challenged by

Petitioner, Viking River Cruises, Inc. (“Viking”), have

recognized that the employees in those cases, like Respondent, Angie Moriana, were standing in the shoes

of the State of California, enforcing penalties designed

“to punish and deter employer practices that violate

the rights of numerous employees under the Labor

Code.”8 This conclusion is premised on the elemental

truth that PAGA is not a waivable personal right, but

that “[c]ivil penalties are an interest of the state. Employees could not recover them until PAGA authorized

aggrieved employees to do so as agents of the state.”9

Viking urges this Court to reject these holdings and

countenance the virtual elimination of a key element

of California’s labor rights enforcement by application

of an employee’s agreement to arbitrate her personal

claims. This would frustrate the very purpose of the

PAGA statute as recognized by California’s highest

court in Arias v. Superior Court, 95 Cal. Rptr. 3d

588 (Cal. 2009) and Iskanian. Such a construction

Iskanian, 173 Cal. Rptr. 3d at 313, citing Brown v. Ralphs

Grocery Co., 128 Cal. Rptr. 3d 854 (2011).

ZB, N.A. v. Superior Court, 252 Cal. Rptr. 3d 228, 242 (Cal.

2019).

necessarily elevates the Federal Arbitration Act

(“FAA”)—an act of Congress that does not address,

much less pre-empt, state governance of minimum

wages and working conditions—above the constitutionally protected sovereign powers of the State.

Viking complains that the PAGA “vastly expands

the scope of employment disputes.” (Brief for Petitioner, p. 26.) Not true. By their nature, violations of

minimum wage, overtime, payday and health and

safety laws are generally broadly imposed, workforce

wide. As such, they are enforced on a workforce wide

basis by the State of California through its citations or

civil litigation authority.10

Viking also complains that “PAGA actions ‘increase[]

risks to defendants . . .” (Brief for Petitioner, p. 30.)

Also, not true. The risk of prosecution under PAGA

does not arise from the employment relationship or

contractual agreement with any particular employee.

It arises from the duties imposed by California and

enforced through its designees. Viking, like all California employers was, and is, always at risk of having

to defend a workforce wide prosecution if it violates

the California Labor Code, with or without PAGA.

What PAGA does, and what Viking and supporting

amici fear, is merely expand the cadre of individuals

who can bring those State enforcement actions, by

deputizing private employees to enforce the California

labor protections designed to protect all workers.

Amici in this brief will demonstrate that regulation of the minimum terms and conditions of employSee, e.g., Lila Garcia-Bower, 2018-2019 The Bureau of Field

Enforcement Fiscal Year Report, California Labor Commissioner’s Office, https://www.dir.ca.gov/dlse/BOFE_LegReport2019.pdf

(last visited Feb. 22, 2022).

ment is within the purview of the states. PAGA is a

fundamental tool used by the State of California to

enforce its labor laws, and such enforcement measures are not pre-empted by federal law directly or

indirectly. They are not inconsistent with the FAA,

as they do not impact the adjudication of personal

claims of the individuals who enter into arbitration

agreements. Therefore, the State’s decisions about

how to enforce its own laws are not preempted, and

this Court should reject Viking’s invitation to invalidate the holding in Iskanian.

ARGUMENT

I. FOR OVER A HUNDRED YEARS,

CALIFORNIA HAS CREATED A STATUTORY

ENFORCEMENT SCHEME DESIGNED TO

PROTECT THE WORKER AND, IN TURN,

THE PUBLIC INTEREST.

California, like many states, has departed from

common law and enacted its broad labor law protections and enforcement strategies in recognition that

basic mandates had to be established to protect workers from exploitation. It was not an effort to protect

individual contract rights, but to address wrongs impacting the public as a whole.

A. California Began Regulating Employment

Relationships To Further Workers’

Common Interest And Promote The

State’s Interests In Preserving The

Common Good.

While the employment relationship between a

worker and employer is fundamentally contractual,

the effects of this relationship permeate into the public’s economic interests, welfare, and safety.

In the 19th and early 20th Century, children as

young as five worked alongside their parents and suffered injuries from industrial accidents and poisoning.11

Most working women lived in “subnormal living” conditions which had the “most disastrous effect” on their

health and morals.12 California employers paid wages

at a time and manner of their choosing,13 and employees cheated of wages had limited recourse through the

courts.14 The employers’ failure to pay wages caused

“unrest, dissatisfaction, and hardship” on the workers

who had to travel long distances to obtain their wages

months after discharge.15 This delay and loss of wages

resulted—and still results today—in the “deprivation

of the necessities of life, suffering inability to meet just

obligations to others, and, in many cases may make the

wage-earner a charge upon the public.”16

California’s “public conscience . . . . awakened to the

fact that the public safety and welfare” demanded

laws providing for “a reasonable wage . . . to exempt

from execution a part of his earnings,[and] to give him

sanitary and otherwise safe surroundings.”17 As a result,

the California Legislature began regulating employDina Mishra, Child Labor as Involuntary Servitude: The

Failure of Congress to Legislate Against Child Labor Pursuant to

the Thirteenth Amendment in the Early Twentieth Century, 63

Rutgers L. Rev. 59, 61 (2010).

Martinez v. Combs, 109 Cal. Rptr. 3d 514, 527 (Cal. 2010).

Smith v. Superior Court, 45 Cal. Rptr. 3d 394, 401-402

(Cal. 2006).

See, e.g., Duncan v. Hawn, 37 P. 626 (Cal. 1894).

Smith, 45 Cal. Rptr. 3d at 401-402.

Moore v. Indian Spring Channel Gold Mining Co., 174 P.

378, 381 (Cal. Ct. App. 1918).

Id.

ment relationships with laws addressing the payment

of wages and worker safety and health. In 1905, for

example, California prohibited the employment of illiterate minors and minors under a certain age because “[p]rotecting minors from injury by overwork

and . . . facilitating their attendance at schools” promoted the general welfare.18 In 1911, it limited women’s labor to eight hours a day.19

To better protect worker welfare and the public interest, in 1913, California established the Industrial

Wage Commission (“IWC”).20 The IWC was tasked

with investigating various industries and setting minimum wages21 “adequate to supply . . . the necessary

cost of proper living and to maintain [worker] health

and welfare,” maximum work hours, and conditions of

labor in various industries by way of wage orders.22

California voters then approved an amendment in

1914 to the California Constitution affirming the Legislature’s actions.23

Subsequently, California prohibited the payment

of wages in checks or orders not redeemable on demand in cash;24 mandated the prompt payment of

See In re. Spencer, 86 P. 896, 897 (Cal. 1906).

See In re Application of Miller, 162 Cal. 697 (Cal. 1912).

Martinez, 109 Cal. Rptr. 3d at 526.

No state law provided for a minimum wage before 1912.

Martinez, 109 Cal. Rptr. 3d at 526.

Martinez, 109 Cal. Rptr. 3d at 528 (citations and quotations

omitted).

Former article XX, section 17 1/2, of the California Constitution provided: “The legislature may . . . provide for the comfort,

health, safety and general welfare of any and all employees.”

Martinez, 109 Cal. Rptr. 3d at 527, n. 20.

See In re Petition of Ballestra, 161 P. 120 (Cal. 1916); Cal.

wages at termination;25 and required semi-monthly

payment of wages.26 In 1916, women and children in

the canning industry became the first employees in

California to receive a legally established minimum

wage.27 California had by then joined other states in

passing minimum wage protections.28 “The widespread adoption of similar statutes by so many states

evidences a general conviction that minimum wage

requirements are definitely in the interest of the general public welfare.”29 This Court observed that

“[t]he adoption of similar [minimum wage] requirements by many States evidences a deep seated conviction both as to the presence of the evil and as to

the means adapted to check it.”30

Employers then, as now, complained. However, this

Court recognized the police power of states to regulate

the employment conditions of its citizens, upholding

Washington’s minimum wage law for women and stating that “the courts have recognized a wide latitude

for the legislature to determine the necessity for protecting the peace, health, safety, morals and general

welfare of the people.”31 This Court further recognized

that states may use their police power to protect their

economic interests which affect the public as a whole:

Lab. Code § 212.

See Moore, 174 P. 378; Cal. Lab. Code §§ 201, 202.

See In re Application of Moffett, 64 P.2d 1190 (Cal. Ct. App.

1937); and Cal. Lab. Code § 204.

Martinez, 109 Cal. Rptr. 3d at 530.

Id. at 526.

Shalz v. Union Sch. Dist., 137 P.2d 762, 767 (Cal. Ct. App.

1943).

W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937).

Id. at 386.

Where, in the earlier days, it was thought that only

the concerns of individuals or of classes were involved, and that those of the state itself were

touched only remotely, it has later been found that

the fundamental interests of the state are directly

affected; and the question is no longer merely that

of one party to a contact against another, but of the

use of reasonable means to safeguard the economic

structure upon which the good of all depends.32

California workers were eventually given the right

to recover their own wages, statutory penalties, and

liquidated damages through an administrative hearing33 or a civil action.34 Employees may also recover

liquidated damages and statutory penalties, in addition to their actual wages lost.35 These statutory damages and penalties recognize that merely requiring

that an employer pay the wages owed and comply with

the laws in the future does not compensate the individual worker for the lost use of their wages or restore

the benefits of labor protections.

These California protections still exist today,36 and

have been extended to all workers, and augmented by

Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 442

(1934) (emphasis added).

Cal. Lab. Code § 98.

Cal. Lab. Code §§ 218, 218.5, 226(e) and (f), and 1194.

Individual workers may recover waiting time penalties and

late payment penalties (Cal. Lab. Code §§ 203, 210); damages for

wage statement violations (Cal. Lab. Code § 226 (e)); additional

compensation for meal and rest period violations (Cal. Lab. Code

§ 226.7), and liquidated damages for unpaid minimum wages

(Cal. Lab. Code § 1194.2).

California’s wage and hour claims are governed today by

the Labor Code and 18 wage orders adopted by the Industrial

additional protections including requiring printed

wage statements,37 codifying daily overtime;38 and

mandating meal and rest periods.39 But recognizing

that these laws aim at promoting the well-being of

workers as a whole, and individual enforcement is not

enough, California went further.

B. California Has Incentivized Compliance

With Minimum Employment Protections

Through State Enforcement and Civil

Penalties.

California’s labor law enforcement strategy does

not solely rely on the personal enforcement of individual labor protections. Instead, it is a multipronged approach that recognizes: 1) the overarching

right of the State to enforce its laws through an administrative citation, criminal prosecution, or civil

action; and 2) the right of the employee to independently pursue their personal claims through administrative complaints, small claims, or civil actions.

PAGA is a state enforcement action that is consistent

with the first prong of California’s historical approach to labor law enforcement.

Wage Commission. Kilby v. CVS Pharm., Inc., 201 Cal. Rptr. 3d

1, 7 (Cal. 2016). In 1937, California established the Labor Code,

repealing and readopting prior acts related to wage and hour

issues. See, e.g., Smith, 45 Cal. Rptr. 3d at 400-01, n. 4.

Cal. Lab. Code § 226.

See Cal. Lab. Code § 510(g) as amended. “Therefore, the

Legislature affirms the importance of the eight-hour workday,

declares that it should be protected, and reaffirms the state’s unwavering commitment to upholding the eight-hour workday as a

fundamental protection for working people.” Cal. Code Regs.

§ 1170 (1999); AB 60, Cal. stats 1999 ch. 134 § 4.

Cal. Lab. Code § 226.7.

1. California Established Civil Penalties

Enforceable Only by the State.

Beginning in the 1930s, California began imposing

civil penalties on employers failing to comply with

employment laws.40 These penalties are recoverable

only by the State.41 They are “not a punishment

[however,] . . . in the sense ordinarily applicable to

the term, but rather the recovery of the penalty as a

fixed sum by way of indemnity to the public by reason

of the violation of the statute and to charge [the offender] with a pecuniary liability.”42 These penalties

are paid to the State and compensate the public for

the harm caused to it by the employer’s failure to follow the Labor Code. The State bears the costs of workers, highly dependent upon their wages for their subsistence and that of their family, who face poverty,

homelessness, and become a public charge when deprived of the wages they earned. Most of these penalties are assessed per employee, per violation in recognition of the workforce wide enforcement approach

engrained in the Labor Code.43

Contemporaneously, acknowledging that the violation of these laws is not a purely a civil matter,

California imposed Criminal sanctions that may be

enforced locally or by the State.44 Criminal liability

has been reinforced and prioritized in recent legisla-

See, e.g., Cal. Lab. Code §§ 210, 226.3, 558, 1021, 1197.1,

1308, 1403, and 6319.

Id.

Shalz, 137 P.2d at 766 (emphasis added).

See, e.g., Cal. Lab. Code §§ 226.3, 558, 1021, 1197.1.

See, e.g. Cal. Lab. Code § 215, 216, 218, 1199.

tion by making intentional wage theft by employers

a form of grand larceny and a felony.45

2. California Established A Labor Law

Enforcement Division.

Since 1939, California has made clear that “[o]ne of

the functions of the Department of Industrial Relations is to foster, promote, and develop the welfare of

the wage earners of California, to improve their working conditions, and to advance their opportunities for

profitable employment.”46 In 1986, California established the Division of Labor Standards Enforcement

(DLSE) reiterating the State’s policy “to vigorously

enforce minimum labor standards in order to ensure

employees are not required or permitted to work under substandard unlawful conditions or for employers

that have not secured the payment of compensation,

and to protect employers who comply with the law

from those who attempt to gain a competitive advantage at the expense of their workers by failing to comply with minimum labor standards.”47 It wasn’t enough.

II. WIDESPREAD VIOLATIONS OF CALIFORNIA’S LABOR LAWS AND THE LACK

OF STATEWIDE RESOURCES PROMPTED

CALIFORNIA TO ENACT PAGA.

California first considered the PAGA legislation

on the heels of the broad recognition of continued

and widespread violations of labor protections by

businesses characterized as the “underground

Cal. Pen. Code § 487m.

Cal. Lab. Code § 50.5, (Added Stats 1939 ch. 276 § 1).

Cal. Lab. Code § 90.5(a); see also, Cal. Lab. Code § 98.3.

economy.” The State recognized this was not a

problem of individual worker exploitation but a pattern of workforce and industry-wide practices that

impacted workers, communities, law-abiding employers, state revenues and the common good.49 This

reality is in stark contrast to the picture painted by

Viking and supporting amici.

According to the U.S. Department of Labor, minimum wage violations in California occur approximately 372,000 times each week.50 This single type of

violation robs employees of almost $2 billion per year,

while the cost is an estimated $15 billion per year

across the country.51 This number is higher than the

estimated total yearly value of all robberies, burglar48

See Daniel Flaming & Pascale Joasart, Workers Without

Rights The Informal Economy in Los Angeles, Economic Roundtable Briefing Paper (2002) https://economicrt.org/wp-content/

uploads/2002/05/Workers_Without_Rights_2002.pdf (last visited

Feb. 22, 2022).

See Daniel Flaming, et al., Hopeful Workers, Marginal Jobs:

LA’s Off-The-Books Labor Force, Broken Laws, Unprotected

Workers: Violations of Employment and Labor Laws in American

Cities, The Economic Roundtable (2005) https://economicrt.org/

wp-content/uploads/2005/12/Hopeful_Workers_Marginal_

Jobs_2005.pdf (last visited Feb. 22, 2022); Annette Bernhardt &

Ruth Milkman, Unprotected Workers: Violations of Employment

and Labor Laws in American Cities (Sept. 21, 2009).

Eli Wolfe, We’re Being Robbed’: Wage Theft in California

Often Goes Unpunished by State, KQED (Oct. 16, 2019), available at https://www.kqed.org/news/11780059/were-being-robbedcalifornia-employers-who-cheat-workers-often-not-heldaccountable-by-state (last visited Feb. 13, 2022).

David Cooper & Teresa Kroeger, Employers Steal Billions

from Workers’ Paychecks Each Year, Economic Policy Institute

(May 10, 2017), available at https://www.epi.org/publication/

employers-steal-billions-from-workers-paychecks-each-year/, at p.

10 (last visited Feb. 22, 2022).

ies, larceny, and motor vehicle theft in the United

States.52 However, while those criminal violations are

enforced by various law enforcement agencies, The

Division of Labor Standards Enforcement was able to

conduct only 792 inspections in 2017 and 751 in 2018.53

That figure went down in 2019 to 691 inspections and

in 2020 to 118 inspections.54 Imagine how different

our communities would be if, statewide, the police

only investigated 118 instances of robberies, burglaries, larceny and motor vehicle theft.

Wage theft is concentrated in the low-wage worker

sector, with the highest rates of citations by the California Labor Commissioner in the agriculture, restaurant, construction, retail, and warehouse sectors, totaling more than $77.4 million in stolen wages in a

single fiscal year.55 Reports show that more than a

quarter of workers experience minimum wage violations and regularly work “off the clock” without pay.56

Cooper, at p. 28.

See Victoria Hassid, Labor Enforcement Task Force Report

to the Legislature, at p. 5 (Mar. 2019), https://www.dir.ca.gov/letf/

LETF-Legislative-Report-2019.pdf (last visited Mar. 3, 2022).

p. 5.

Labor Enforcement Task Force Report to the Legislature, at

Nadia Lopez, Wage Theft Is a Serious Issue in California.

Here’s who it impacts most, how to get help, Fresno Bee (Feb.

10, 2022), available at https://www.mercedsunstar.com/news/

california/article258132413.html (last visited Feb. 13, 2022).

See generally, Annette Bernhardt, et al., Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in

America’s Cities, at p. 20. See also, Ruth Milkman, et al., Wage

Theft and Workplace Violations in Los Angeles: The Failure of

Employment and Labor Law for Low-Wage Workers, UCLA

Labor Center (2010) https://www.labor.ucla.edu/wp-content/

uploads/2018/06/LAwagetheft.pdf (last visited Feb. 13 2022).

In 2017 and 2018, the California Labor Enforcement Task Force, charged with combating the underground economy,57 found that an average 93% of businesses inspected each month were found to be out of

compliance by at least one agency.58 In 2017 and 2018,

DLSE cited 52% of businesses inspected while in 2019

and 2020, the citation rate remained almost the same

at 53%.59 While California has tackled this persistent

problem in various ways, including through the measures listed in Section I above, violations of minimum

wage, overtime, meal and rest periods, and other basic

worker protections persist. The State may never have

the resources necessary to address the problem solely

through direct State enforcement activity.

As such, California enacted PAGA “to achieve maximum compliance with state labor laws” and “to ensure

an effective disincentive for employers to engage in

unlawful and anticompetitive business practices.”60

As the California Supreme Court noted:

Evidence gathered by the Assembly Committee on

Labor and Employment indicated that the Department of Industrial Relations (DIR) “was failing to

effectively enforce labor law violations. Estimates of

the size of California’s ‘underground economy’—

businesses operating outside the state’s tax and li-

See generally Labor Enforcement Task Force Report to the

Legislature.

p. 5.

Labor Enforcement Task Force Report to the Legislature, at

Cal. Stats. 2003, ch. 906, § 1.

censing requirements—ranged from 60 to 140 billion dollars a year, representing a tax loss to the

state of three to six billion dollars annually. Further,

a U.S. Department of Labor study of the garment

industry in Los Angeles, which employs over 100,000

workers, estimated the existence of over 33,000 serious and ongoing wage violations by the city’s garment industry employers, but that DIR was issuing

fewer than 100 wage citations per year for all industries throughout the state. Moreover, evidence demonstrates that the resources dedicated to labor law

enforcement have not kept pace with the growth of

the economy in California.” (Assem. Com. on Labor

and Employment, Analysis of Sen. Bill No. 796 (Reg.

Sess. 2003–2004) as amended July 2, 2003, p. 3.).61

In short, PAGA was passed to address the rampant

widespread violations that the State is unable to pursue on its own.

III. THE CIVIL PENALTIES RECOVERABLE

UNDER PAGA ARE THE STATE’S AND

NOT SUBJECT TO CONTRACTUAL

WAIVER BY INDIVIDUAL EMPLOYEES.

Facing a crisis in the underground economy and decreasing state resources for enforcing these protections, California through PAGA designed a system to

deputize employees who suffered violations of their

labor rights to promote enforcement of its laws. PAGA

is a prophylactic law meant to protect the public’s economic interests and welfare interest. PAGA achieves

this goal in four ways. First, it increases enforcement

of civil penalties for violations of labor laws dating

back to the 1930s. Second, it creates new civil penal61

Iskanian, 173 Cal. Rptr. 3d at 309.

ties for violations of certain Labor Code provisions

that previously had no civil penalty that could be assessed.62 Third, it reimburses workers and their counsel who, as an extension of the State, take on the burden and risks of enforcing labor law. Fourth, it

increases revenues for the agency charged with enforcing the labor protections by remitting 75% of the

penalties to the State. All while the State retains its

primary right to enforce California law.

A. PAGA Expands the State’s Enforcement

Reach By Allowing Individual Aggrieved

Employees to Enforce Civil Penalties for

the State.

PAGA allows an aggrieved employee to bring a civil

action to enforce and recover civil penalties for California Labor Code violations.63 As explained by California’s

Labor Workforce and Development Agency (“LWDA”):

PAGA benefits the public by augmenting the state’s

enforcement capabilities, encouraging compliance

with the Labor Code provisions, and deterring noncompliance. This furthers the state’s policy to protect workers from substandard and unlawful conditions and also to protect employers “who comply

with the law from those who attempt to gain a competitive advantage at the expense of their workers

by failing to comply with minimum labor standards.”64

PAGA allocates 25% of the penalties, which would

otherwise be paid to the State, to the plaintiff and oth-

Cal. Lab. Code § 2699(f).

See Cal. Lab. Code § 2699(a).

O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1133

(N.D. Cal. 2016) (quoting the LWDA response).

er aggrieved employees. It also creates new penalties,

enforceable only through PAGA.65 Both the PAGA

Plaintiff’s right to recover compensation for enforcing

these labor laws, and the State’s right to recover funds

through enforcement of these PAGA only penalties are

stripped away under Viking’s construction. As fully

addressed in Respondent’s brief, this is contrary to

California’s long-standing anti-waiver rule—which applies to all contracts, not just arbitration agreements.

(Respondent’s Brief on the Merits at pp. 38-42.)

B. PAGA Was Created To Protect The Public

Interest, Not The Personal Interests of an

Individual Employee. The State Retains

Significant Control Over a PAGA Claim.

PAGA’s purpose is to promote the public interest. 66

Citing the legislative history, the California Supreme

Court in Arias, made clear that aggrieved employees

stand in the shoes of the state to recover civil penalties “with the understanding that labor law enforcement agencies [] retain primacy over private enforcement efforts.”67 This primacy is built into the

statute68, making clear that PAGA is an enforcement

tool, not a private recovery mechanism subject to

contractual waiver. In this respect, it is far closer to

Cal. Lab. Code § 2699(f).

See Moniz v. Adecco USA, Inc., 287 Cal. Rptr. 3d 107 (72

Cal. App. 5th 56, 77) (Cal. Ct. Appt. 2021) (“Given PAGA’s purpose to protect the public interest, we also agree with the [State

of California] and federal district courts that have found it appropriate to review a PAGA settlement to ascertain whether a

settlement is fair in view of PAGA’s purpose’s and policies.”).

Arias, 95 Cal. Rptr. 3d at 595.

Cal. Stats. 2003, ch. 906 § 1.

a qui tam action than Viking and supporting amici

would have this Court believe.

An aggrieved employee cannot file a PAGA claim

without first informing the State and giving them an

opportunity to investigate the claim by submitting

online a written notice of the alleged violations, often

referred to as the “PAGA Notice.”69 This protects

California’s interests and gives it the first opportunity to intervene and investigate the case. Simultaneously, the employee must send the notice by certified mail to the employer.70 Critically, the State may

notify the employer within 65 calendars days of the

postmark date of the PAGA notice that it intends to

investigate and has an additional 120 to 180 days to

investigate.71 It is ONLY if the State does not investigate and issue a citation that an aggrieved employee may file a PAGA claim.72

The State is given an another opportunity to step in

once a complaint has been filed,73 and yet again when

a tentative settlement has been reached.74 Finally,

courts must approve the settlement75 by reviewing it

to determine if it “is fair, reasonable, and adequate in

view of PAGA’s purposes to remediate present labor

violations, deter future ones, and to maximize enforcement of state labor laws.”76

Cal. Lab. Code § 2699.3(a)(1)(A); § 2699.3(c)(1)(A).

Id.

Cal. Lab.Code § 2699(l)(1).

Cal. Lab.Code § 2699(l)(2); § 2699.3(b)(4).

Moniz, 287 Cal. Rptr. 3d 107, (72 Cal. App. 5th at 77).

California’s interest in protecting employees’ labor

rights is paramount. It is the State whose interest is

to prevent labor violations, deter future ones, and enforce labor laws. It is, after all, within its power to

cite an employer or find that an employer has violated the labor laws of California. An employee does

not have this power. Combining the procedural requirements of filing a PAGA action with court approval of a proposed PAGA settlement ensures that,

while aggrieved employees may enforce these protections in the name of the State, they do not have the

unchecked power they would have to resolve their

private rights of action.

C. Employers Have The Right To Cure a

Violation, Which If Done, Stops a PAGA

Action.

Unique to PAGA is the employers’ right to cure

certain violations alleged in the PAGA notice and

avoid civil penalty liability. This focus on correcting

the violation, demonstrates that PAGA is not a mechanism for recovery in an individual employee’s

claim.77 Once an employer cures the violation and

gives written notice to the employee and the State,

an employee may dispute the alleged cure(s) but it is

the State who reviews the actions and decides whether the violations were cured.78 If cured, an aggrieved

employee would be prohibited from filing a cause of

action under PAGA.79

Cal. Lab. Code § 2699.3(c)(2)(A). The employer may cure a

violation alleging a violation other than those listed in section

2699.5 or sections 6300-9104.

An employee may challenge that decision by filing a civil

action. Cal. Lab. Code § 2699.3(c)(3).

Cal. Lab. Code § 2699.3(c)(3).

The aggrieved employee’s personal claims are unaffected by the employer’s cure of violations under PAGA

and may still be pursued by the individual employee,

including through arbitration. The State holds the

right to the civil penalties subject to PAGA, not the

employee—even if that employee suffered the violations giving raise to the civil penalties. Thus, employees cannot contractually waive a PAGA claim.

Employers’ right to cure violations shows the State’s

interest in compliance over the collection of penalties,

evidencing the fact that the PAGA statute is a procedural tool used to protect the interests of the State and

the public and not the interests of individual plaintiffs.

California’s goal remains the same since the 1920s: for

“employer[s] to keep faith with [their] employees.”80

D. The Number Of Interventions Or

Objections Submitted By The State Is Not

An Indication The System Is Broken But

That It Is Working.

The number of PAGA claims filed and the number

of interventions or objections submitted by the State

is actually an indication that the intent of the law is

being fulfilled and that the need underlying its passage has not abated. Staffing levels for the state have

remained consistently low while the underground

economy has continued to thrive.

When enacted, the Legislature declared: “Staffing

levels for state labor law enforcement agencies have,

in general, declined over the last decade and are likely

to fail to keep up with the growth of the labor market

in the future.”81

Moore, 174 P. at 381.

Cal. Stats. 2003 ch 906, § 1.

Sadly, and perhaps inevitably, this understaffing

persists. As of February 15, 2022, for example, the

Department of Industrial Relations had 94 open positions.82 Cal/OSHA, the State’s Division of Occupational Safety and Health (DOSH), had 55 vacancies

as of January 31, 2022.83 However, only 16 of those

vacancies were posted as open positions.84 Clearly,

the State continues to suffer from a labor shortage,

which the Legislature anticipated would happen.

The administrative claims process available to workers pursuing their individual claims suffers the same

lack of resources.85 Now more than ever, PAGA is an

essential mechanism by which aggrieved employees

may continue to pursue the public’s interest and

help fight against substandard and unlawful working conditions.

A recent study confirms the positive and meaningful impact PAGA has had across the State in various

Department of Industrial Relations, Job Search Results,

Department of Industrial Relations, CalCareers, https://www.

jobs.ca.gov/CalHRPublic/Search/JobSearchResults.aspx#

depid=83 (last visited Feb. 15, 2022).

Department of Industrial Relations, Cal/OSHA Recruiting and Hiring, Cal/OSHA, https://www.dir.ca.gov/dosh/DOSHRecruitment-Hiring.html (last updated February 2022) (last visited Feb. 22, 2022).

Job Search Results, Department of Industrial Relations,

CalCareers, https://www.jobs.ca.gov/CalHRPublic/Search/

JobSearchResults.aspx#kw=OSHA&depid=83 (last visited

Feb. 15, 2022).

Farida Jhabvala Romero, California Workers Face YearsLong Waits for Justice in Wage Theft Cases, State Data Shows,

KQED, March 12, 2022, found at https://www.kqed.org/

news/11906889/california-workers-face-years-long-waits-forjustice-in-wage-theft-cases-state-data-shows (last visited Mar.

2, 2022.)

low-wage industries. PAGA actions generated $88

million in civil penalties in 2019 alone.86

Without this enforcement mechanism to incentivize

employers to comply with labor laws, employees will

continue to suffer shocking rates of wage theft and the

State’s economy and general well-being will continue to

suffer. This is not a statute used to catch unintentional

violations. As the UCLA study demonstrates, 89% of

PAGA cases analyzed claimed wage theft (Id. at 10).

IV. PAGA, AS AN ELEMENT OF THE STATE’S

ENFORCEMENT STRATEGY, IS AN

EXERCISE OF ITS POLICE POWERS

NECESSARY TO MAXIMIZE THE

ENFORCEMENT OF LABOR

PROTECTIONS.

“There is no question that state and local authorities possess considerable power to regulate public

health. They enjoy the ‘general power of governing,’

including all sovereign powers envisioned by the Constitution and not specifically vested in the federal

government.”87 “[I]n all pre-emption cases, and particularly in those in which Congress has ‘legislated . . .

in a field which the States have traditionally occupied,’ . . . we ‘start with the assumption that the historic police powers of the States were not to be superRachel Deutch, et al., California Hero Labor Law: The Private

Attorney’s General Act fights wage theft and recovers millions from

lawbreaking corporations, at p. 8 (Feb. 2020), available at https://

www.labor.ucla.edu/publication/paga/ (last visited Feb. 13, 2022).

Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 142 S. Ct. 661, 667

(2022) (Gorsuch concurring, acknowledging the authority of and

action by the states to establish health and safety protections to

address the Covid-19 pandemic) (citing National Federation of

Independent Business v. Sebelius, 567 U. S. 519, 536, (2012)

(opinion of Roberts, C. J.); U. S. Const., Amdt. 10).

seded by the Federal Act unless that was the clear and

manifest purpose of Congress.’ ”88

California has unequivocally and repeatedly made

clear that its regulation of employment inures to the

benefit of the common weal, not just individual employees.

The preservation of States’ sovereignty is based on

the recognition that the regulation of certain activities is more appropriately vested in the States:

The federal structure allows local policies “more sensitive to the diverse needs of a heterogeneous society,” permits “innovation and experimentation,” enables greater citizen “involvement in democratic

processes,” and makes government “more responsive

by putting the States in competition for a mobile citizenry.” Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who

seek a voice in shaping the destiny of their own times

without having to rely solely upon the political processes that control a remote central power.89

What could be more fundamental to the notion of

sovereignty than the State’s right to enforce its own

non-preempted laws? PAGA is part of California’s enforcement strategy designed to promote compliance

with California laws that are neither pre-empted nor

limited by federal act, but are within the recognized

power of the State to establish and enforce more pro-

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (Federal regulation of drugs does not pre-empt state common law tort finding of

liability) (citations omitted).

Bond v. United States, 564 U.S. 211, 221-222 (2011) (citation and quotation omitted).

tective local standards. The federalist system created by the Constitution recognizes that States are in

a special position to provide for the specific needs of

their citizenry given their privity to each other:

The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals,

not States. The great innovation of this design was

that our citizens would have two political capacities,

one state and one federal, each protected from incursion by the other—a legal system unprecedented in

form and design, establishing two orders of government, each with its own direct relationship, its own

privity, its own set of mutual rights and obligations

to the people who sustain it and are governed by it. 91

As the court in Printz and other cases recognize, this

reservation of rights to the states, is particularly important in the context of regulating public safety

and health.92

Viking’s argument, if accepted, forces California to

design its enforcement strategy in a manner that implements and consequently becomes shackled by the

federal regulation of arbitration agreements. This commandeering of state policy forces California to limit its

choice of who may enforce its laws—on its behalf—from

amongst a limited number of employees who have not

signed arbitration agreements, or as to those businesses

who had not required their employees to do so.

See 29 U.S.C. § 218 (a); Terminal Assn. v. Trainmen, 318

U.S. 1 (1943) (Railway Act did not preempt states’ regulation of

health and safety provisions).

Printz v. United States, 521 U.S. 898, 920 (1997) (citations

and quotations omitted).

See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 667.

Viking argues that the FAA controls who California

can and cannot deputize. By application, it coopts the

state into enforcing the FAA—which regulates the

acts of individuals, not the State—by restricting the

enforcement of state law, based on an arbitration

agreement to which the State is not a party.

Arbitration clauses, such as those signed by Ms.

Moriana, are generally required as a condition of employment for all workers in a particular classification company-wide. Accordingly, by manipulating

the FAA, employers can deprive the State of the

ability to use this enforcement arm altogether. This

will likely promote the wholesale requirement of adhesive arbitration agreements, buried in multipage

employee handbooks.

The FAA is not intended in any way to either address the regulation of places of employment or a

state’s authority to enforce their own laws. This is

inimical to the notion of the independent sovereignty

of the states:

We have always understood that even where Congress has the authority under the Constitution to

pass laws requiring or prohibiting certain acts, it

lacks the power directly to compel the States to require or prohibit those acts. . . . Congress may not

simply commandee[r] the legislative processes of

the States by directly compelling them to enact and

enforce a federal regulatory program.93

The court in Murphy v. NCAA struck provisions of the

federal gaming act that limited the States’ ability to

pass certain gambling laws; holding that federal law

Murphy v. NCAA, 138 S. Ct. 1461, 1476-1477 (2018) (quotations and citation omitted).

limiting the State’s action, as opposed to directing it,

nonetheless improperly invaded the State’s powers.94

Nor is there any concern that the preservation of

California’s method of enforcing its laws will detract

from the intended impact of the FAA:

When determining the breadth of a federal statute

that impinges upon or pre-empts the States’ traditional powers, we are hesitant to extend the statute

beyond its evident scope. See Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 533, 120 L. Ed. 2d 407,

112 S. Ct. 2608 (1992) (‘We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which clearly is mandated by Congress’

language’) (Blackmun, J., concurring); id., at 523

(opinion of Stevens, J.); R. J. Reynolds Tobacco Co.

v. Durham County, 479 U.S. 130, 140, 93 L. Ed. 2d

449, 107 S. Ct. 499 (1986). We will interpret a statute to pre-empt the traditional state powers only if

that result is ‘the clear and manifest purpose of

Congress.’ Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947).95

The self-stated purpose of the FAA is to “make valid

and enforceable written provisions or agreements for

arbitration of disputes arising out of contracts, maritime transactions, or commerce among the States or

Territories or with foreign nations.”96 California’s sovereign right to deputize an aggrieved employee, to enforce its laws is not at odds with that purpose. Pursuant to previous rulings of this Court, the FAA does not

Id. at 1478, construing the holdings in New York v. United

States, 505 U.S. 144 (1992); Printz, 521 U.S. 898.

Dep’t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 345 (1994).

68 P.L. 401, 43 Stat. 883, 68 Cong. Ch. 213.

limit the rights of employers to enter into or enforce

their private agreements to arbitrate personal claims

with those employees. Congress has not, however, acted to limit the states’ power to legislate and enforce

minimum terms and conditions of employment.

While Congress may exert control over states’ policies under the Commerce Clause through pre-emption

of the subject matter, that is not what is argued here.

Viking and supporting amici argue that Congress can

tie the State’s hands when it comes to devising and

following an enforcement strategy. But, “[w]here a

federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not

conscript state governments as its agents.”97

No case law has construed the FAA in a manner

that directly impedes state enforcement of its laws

that are not otherwise preempted.98 Yet Viking would

have this Court carve out a new and invasive restriction on states that is not found in the language of the

FAA or any other preemptive statutory scheme. As

Chief Justice Roberts noted:

Legislative novelty is not necessarily fatal; there is

a first time for everything. But sometimes the most

telling indication of [a] severe constitutional problem . . . is the lack of historical precedent for Congress’s action.99

New York, 505 U.S. at 178.

Indeed, there is disagreement as to whether the FAA was

intended to preempt State law. See Kindred Nursing Cttrs. Ltd.

P’ship v. Clark, 137 S.Ct. 1421, 1429-30 (2017) (Thomas, J., dissenting) (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.

265, 285 (1995) (Thomas, J., dissenting); Kansas v. Garcia, 140

S.Ct. 791, 808 (2020) (Thomas, J., concurring).

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549

Viking urges this Court to engage in “judicial guesswork” about the purpose and intent of the FAA as it

relates to state enforcement. This “purposes and objectives” application of preemption is neither required

nor consistent with the Supremacy Clause.100

PAGA creates an enforcement arm of the State,

staffed by individual employees who are uniquely able

to identify those violations of state civil and criminal

laws because they have suffered those very violations.

California’s interest in enforcing these protections is

equal to and independent of that of individual workers, if not paramount.101 Preserving that interest does

not undermine the purpose of the FAA.102 The FAA

does not address the enforcement or adjudication of

the rights between the State and employers and construing it to do so is a reach too far.

In fact, the only purpose served by the Viking’s contrived construction of the FAA is to further the interests of unscrupulous employers. It promotes arbitration, not as an efficient alternative to litigation but as

a means of reducing and avoiding the risk of workforce-wide liability for the widespread violations of

the labor laws employers contrive as a means of maximizing their profits.103

(2012) (quotations and citations omitted).

100

Kansas v. Garcia, 140 S. Ct. at 808 (Thomas, J. concurring).

101

See Cal. Stats. 2003, ch. 906, § 1(d).

As Respondents point out in their brief, PAGA, likewise,

does not exempt itself from arbitration, Viking’s error is in its

attempt to force the waiver of the PAGA representative action

and concomitantly eliminating recovery for the State, the PAGA

plaintiff and other aggrieved workers.

102

103

The lack of disincentive that comes from the risk of facing

CONCLUSION

Individual lawsuits and administrative actions simply cannot fill the need for workforce wide enforcement of labor protections. California carefully constructed PAGA in order to expand its enforcement

resources by deputizing workers who had themselves

suffered at the hands of law-breaking employers. It

has served that purpose and resulted in the enforcement of protections with monetary sanctions imposed,

not worker, by worker, but for the whole affected

workforces. Preserving the State’s right to deputize

and enforce its laws in this manner does not impede or

interfere with the rights of employers and employees

to agree to arbitrate their personal claims. But, eliminating that enforcement strategy will return California to the sorry state of labor law enforcement which

prompted its legislature to act in 2003 and pass PAGA.

The California Court of Appeal’s decision below is

correct and should be affirmed and the California Supreme Court’s decision in Iskanian should remain undisturbed.

Respectfully Submitted,

CynThIA L. RIce

Counsel of Record

CALIFORNIA RURAL LEGAL

ASSISTANCE, INC.

1430 Franklin Street, Suite 103

Oakland, CA 94612

(510) 267-0762, Ext. 1001

crice@crla.og

individual, personal claims is demonstrated by Viking’s own

characterization of the recoveries for many labor law violations

as “paltry.” (Viking’s Brief on the Merits at p. 30.)

EsTellA CIsneros

AnAlI CorTez BulosAn

CALIFORNIA RURAL LEGAL

ASSISTANCE, INC.

3747 E. Shields Avenue

Fresno, CA 93726-7029

CorrIe ArellAno

SAndrA AguIlA

CALIFORNIA RURAL LEGAL

ASSISTANCE, INC.

2050 S. Broadway, Suite G

Santa Maria, CA 93454

VerónIcA Meléndez

CALIFORNIA RURAL LEGAL

ASSISTANCE FOUNDATION

2210 K Street, Suite 201

Sacramento, CA 95816

Attorneys for Amici Curiae

March 9, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.