PAGA Claims After Viking River Cruises, with Eric Kingsley

Timothy Kowal, Esq.
September 6, 2022

What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead. The holding disapproves the California Supreme Court decision in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 as running afoul of the Federal Arbitration Act.

Eric explains that the effect of Viking River may be short-lived. The California Supreme Court has already granted review in another case involving whether arbitration may be compelled in a PAGA representative action in Adolph v. Uber Technologies, Inc. Eric explains how the Court may follow the lead offered in Justice Sotomayor’s Viking River concurrence.

Eric also shares his experiences litigating in the California Supreme Court, some other interesting employment cases, and the Dr. Sally Ride Memorial Highway.

Eric Kingsley’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:


Eric Kingsley  0:03
I find arbitration to be an anathema. It's it's absolutely horrible. I mean, the Seventh Amendment exists for a reason.

Announcer  0:09 

Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:23 

Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:25 

And I'm Tim Kowal, the California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists, but we split our practices about evenly between trial and appellate courts. And on each episode, we try to bring our audience some legal news and perspective they can use in their practice.

Jeff Lewis  0:41 

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Tim Kowal  1:11
are glad to welcome Eric Kingsley to the podcast. Eric is a principal in Kingsley and Kingsley. He has practiced concentrates on wage and hour cases class and pagal litigation in California. He has been on the cutting edge of numerous legal issues, including being a part of a legal team that took a case to the United States Supreme Court in 2012. And then in 2020, Eric personally argued a case before the California Supreme Court in Chem V rains that resulted in a seven Oh opinion in his client employees favor. Aside from his legal work. He has been an active member of the California Employment Lawyers Association and on the board of the Consumer Attorneys of California who seeks to advocate for legislation on behalf of consumers and employees in Sacramento. Eric has served as the chair of the anti defamation League's Pacific Southwest Region, and currently serves as vice chair of International Affairs. Eric received a BA in history from UC Santa Barbara in 1993, and remains an avid history buff and a political watcher. So Eric, welcome to the podcast. Thanks for joining us.

Eric Kingsley  2:13

Thank you so much for having me.

Tim Kowal  2:15
I understand that that you and Jeff have a connection as well. I think you go way back to Loyola law school. Is that right?

Eric Kingsley  2:22 
Yes. And I believe we also attended college together at UC Santa Barbara, go Gauchos?

Tim Kowal  2:27 
Yes. All right. Well, Eric, I only gave gave a snippet of your resume, if you would tell us a little more about your employment practice. And as we're going to be talking about pega cases, how much of your workload involves pega cases?

Eric Kingsley  2:42 
So you know, I My practice is dedicated to employment law, you know, and we probably have a smaller portion of our practice, what some of the industry call your fee, har, single plaintiff, employment matters, sort of sexual harassment, discrimination. And sometimes you have individual Wage and Hour claims if the matters are particularly large. But the bulk of the practice, probably about 80% is a class and haga litigation on behalf of groups of employees who have been some way harmed by their employer, not paid overtime, denied breaks during COVID. One thing that was very common is he would send folks home and they would have to pay for their own internet and their own cell phones and no reimbursement of their business expenses. And so that's kind of an interesting claim that you didn't see prior to 2020 as common.

Tim Kowal  3:32 

Now, here's maybe an ignoramus question, when does a pega action become a class action?

Eric Kingsley  3:40 
So paga, you know, is a statute that was enacted? Right as Gray Davis was sort of leaving office having been, you know, recalled from office and replaced by, you know, Governor Schwarzenegger, and this was sort of his last act as governor. And so it's interesting when it was enacted back in early, I think it was 2004. If I get the date correctly, it wasn't an enlarged use. And so I think what happened from a historical perspective is in 20, oh 11 When the 18 T vs. Concepcion case came down from the US Supreme Court, which started to put into question whether or not arbitration agreements could be enforced, first against consumers and started to create a trend as against employees as well, that paga and then you have the ischemia and a case here that came down in 2013. From our own California Supreme Court that said, the state is not in privity of contract with the employer. And so therefore, because paga you really stand in the shoes of the state, and are bringing labor enforcement actions on behalf of the state. That claim couldn't be compelled into arbitration. And so I think since 2013, so really nine years, haga started to pick up a head of steam, because many class actions couldn't be brought because they compelled are the individual be compelled into arbitration. But paga as an enforcement action on behalf of the state could still be pursued without arbitration being a roadblock.

Tim Kowal  5:10 
So you Jeff, as sometimes happens, my attempts at light banter take us into law review article answers. And sorry about that. Just demand to bring it I mean, I read I was telling Jeff that I've read some of some Eric's daily journal articles and pieces talking about the Viking river cruises case that we'll be talking about a little later. And and I got the same feeling as far as I can remember having about a pellet procedural Arcana before studying for and passing the appellate specialist exam. This is this is worthy of being its own area of legal specialty, these employment law cases and paga cases.

Eric Kingsley  5:46 
It's interesting if I can intercede for a second I what I find interesting about wage and hour, especially though the practice developed over the last 15 or 20 years, is that it's very legal intensive, which is probably right up your guys's alley, because that's sort of what you do with your appellate and it's very appellate intensive to to some degree, whereas the other side of employment law is really interesting. It's very much about emotion and emotional distress damages and a little bit more touchy feely, you know, whereas Wage and Hour tends to be much more about math and law, it's a little bit more cut and dried, either it is or it isn't, you know, depending on the circumstances.

Tim Kowal  6:18 
Well, we'll talk a little bit later about opportunities where appellate attorneys can get involved in these pocket cases, because in employment arbitration, arbitration gets involved so often in arbitration is designed mostly to cut us appellate attorneys out of the out of business. So so I'm anxious to know of any angles where appellate attorneys can get more involved there. But I have to go back to to your United States Supreme Court case, tell us a little bit about your journey to the US Supreme Court.

Eric Kingsley  6:43
Yeah, so that was interesting. It didn't end well. But so in about 2007 2008, I started getting involved with a series of cases on behalf of pharmaceutical sales representatives. And those are kind of the people that go into doctors offices, and sort of convinced the doctor to prescribe particular product drug usually. And so they were getting paid on a straight salary. And so I us and a couple other lawyers in New York in Chicago, decided that that was inappropriate under both federal and and state law. And it makes practical sense, because the when the pharmaceutical rep talks to the doctor, she's or he is a lot of them were women, trying to get a non binding commitment for the doctor to prescribe a product. And so the industry was claiming that that was the sale. And so therefore, they were exempted, or what's called the outside sales exemption. We said no, no, the sale occurs when the patient shows up at a pharmacy and actually pays money, you know, to the pharmacy to purchase the actual product, that that's where the sale occurs. So we litigated these cases for a while there was a Second Circuit ruling that actually ruled in our favor and the employees favor, and then the Ninth Circuit ruled against, there was a team out of Arizona that was handling that case. And they wanted to appeal it to the US Supreme Court. And I sort of told them that that was a bad idea. And they weren't convinced. And so then the other side hired Paul Clemente to be their lawyer. And Paul Clement, basically, in his opposing brief told the court to take the case and they took the case. So then we proceeded to hire Tom Goldstein, who is the SCOTUS blog founder and argue the case and we felt pretty good actually, the argument, interesting story I am when I showed up in DC, I wasn't at counsel table. I was there were four of us that sort of were on the brief, but because the Solicitor General came in at the last minute, two of those seats, went to the Solicitor General, so I did not get my coal pen. I didn't get to sit at counsel table. But interesting story. When I walked into the chamber, I didn't have anything on me. Most people had phones and wallets. I happen to have not brought it with me because I kind of knew we were gonna have to go through security, walked right. And I was the first person that entered the courtroom. And they sat me right on the front row. And Donald Verrilli, Jr, who had a reserved seat that was seated next to mine, who at the time was the Solicitor General of the United States. And I got to have a nice conversation with him for about 45 minutes. And after that was over, we felt good. And then about I guess two months later, we got the decision five before we lost, Alito wrote the opinion and Breyer wrote the dissent, just along the lines that you would expect.

Tim Kowal  9:22 

Yeah, no, that's that's an incredible story, though. What a ride. Well, let's Well, let's move to your more recent case in the California Supreme Court in in 2020. The case was Kim V. Raines, where the California Supreme Court ruled in your favor, this time in a class action wage claim. And I wondered if, before we discuss that case, do you have any tips to our audience on how to get the California Supreme Court to grant review? What you

Eric Kingsley  9:49 
have to lose? Right so I, you know, interestingly enough to hear the story of the case I lost in the trial court. Then I went to the Court of Appeal, lost again and sort of incredulous How is this possible, they don't understand, you know, the way the law is supposed to work. And then you file your petition for review. And lo and behold, they take the case and you look like a hero. But but for, you know, the since the grant rates are so low, you know, I could have ruined the law just as easily has been the hero to the employment bar by sort of setting it straight.

Jeff Lewis  10:23 
All right, why don't you tell our audience what that case was about and what the Supreme Court ruled.

Eric Kingsley  10:29 
So my client, Mr. Kim, was worked at a restaurant and he wasn't paid overtime when he was a management trainee. And so our argument was that because he, he didn't yet have managerial authority, he couldn't be paid as an exempt employee. And therefore, since he worked overtime, he was entitled to overtime. And I don't think really, that was really in much dispute. I think it was pretty clear we were going to when they made a motion to compel arbitration, the paga claim this is pre Viking, obviously, at the time was stayed in court, we went to the arbitration proceeding, they then proceeded to serve a 998 offer on us for $20,000 exclusive of fees. So we could get fees on top of the 20,000, the claim was probably only worth about $10,000. And so we kind of felt we were in a quandary, we knew that a trap was laid for us. But we didn't feel that, ethically speaking, we had a choice, you know, if the claim was worth what they're offering us twice what his claim was worth. And so we accepted, there was language in the 998. That said, sort of paraphrasing from memory here, but something like that. This only applies to Mr. Kim's individual claims only. But we thought, okay, we know this could be a problem. But you know, we have no choice. We have to take our shot. So we go back to the trial court, they make a motion for summary judgment, saying that basically he loses standing. The impetus for that is labor code. 2699, which is the August statute says that an aggrieved employee is someone who wants a more employed by an alleged violator, so employed by the company and who one or more of the alleged violations was committed against. So we thought, well, you know, they committed the overtime violation against him, the fact that he doesn't have individual standing for his pure individual claims anymore shouldn't affect his paga standing or disagreed granted summary judgment. We thought we had, you know, we had to fight back. So we we appealed, the Court of Appeals was very hostile and oral argument and affirm the judgment of the court. And then we went to the Supreme Court and California Supreme Court, and they were very favorable in the opinion, they basically said once aggrieved always, you know, if you were employed by alleged violator, number one, and it was committed against you, you don't lose that status as an aggrieved employee, just because you've settled your individual claims, the state still has a claim and you meet the standing requirement. Yeah.

Jeff Lewis  12:47 
And let me ask you this, you obtained a seven Oh, decision and the California Supreme Court. By my reading, the Supreme Court of California often seems less divided and less divisive. In general, when they decide cases than the United States Supreme Court. Would you agree with that? And why why is it the California Supreme Court can can all get on the same page in the in the United States Supreme Court can't?

Eric Kingsley  13:10 
It's it's interesting. Yes. As you're asking me the question, I kind of saw what you were going with that. It's always interesting to me, and sometimes there's some pretty liberal opinions that have come out of the court over the last 510 years, you know, Justice chin, you know, even on the court now, Justice Corrigan, who obviously were appointed by Republicans, and you would think have a little bit more conservative point of view. But it just seems like in general, on almost all issues, you don't see too many dissents may even go back to the breaker case, which was in 2012. I believe there were two concurrences where they felt like the court could should go a little further. But But generally speaking, you get wide consensus even on pretty I don't want to say radical, but you know, somewhat more than left of center positions on on employment matters that really probably disappoints the business community to a significant degree.

Tim Kowal  14:02 
Do you think that may have to do with with issues being less ideologically tinged, or because the justices themselves are less ideologically tinged?

Eric Kingsley  14:11 
I don't know. I mean, maybe maybe we want to hope that judges look at what statute on the page and if the legislature isn't acting more left leaning principles, they're actually interpreting them as they were written? I don't I honestly, I don't know how to read their minds. Right.

Jeff Lewis  14:25 
Let me ask this, you know, as appellate attorneys, Tim and I and our most of our listeners, are generally hostile to arbitrations, because there's no meaningful right of appeal on the merits of the dispute. And I was just wondering with the work that you do the employment work, do you see any role for arbitrations in employment disputes? Are there any disputes that you think arbitrations are the preferable way of resolving disputes?

Eric Kingsley  14:50 

So two comments about your question one is interesting. There actually is a place for appeals and arbitration I've seen Not that many, but there are a few number have arbitration agreements that actually provide for at an appellate layer of review to an arbitrator. So, I guess theoretically, practitioners might, you know, reach out to appellate folks to to handle those appeals if they're either successful or not successful, depending on what side they're on. But I find arbitration to be an anathema. It's absolutely horrible. I mean, the Seventh Amendment exists for a reason. And the fact that you can just waive your Seventh Amendment rights, you know, pre dispute seems crazy to me. I mean, I think that, you know, Madison would be rolling over in his grave if you heard that we've created such a system. And I actually further predict, probably in 15 or 20 years from now that the FAA will be drawing the Federal Arbitration Act will be drastically carved out and we'll look back at this period of history as sort of a second Lochner era, and then be surprised that folks had to go to some private judging in order to get justice in this country.

Tim Kowal  15:53 
You have a comment on on private judging more, more generally, we have talked about this issues. Some some concurring opinions and dissenting opinions that Jeff and I have talked about in recent years, have been taking a little bit more of a critical shot at at the idea of private judging, as you just expressed, and do you do you see a trend going one direction or another, either for or against private judging? Well, I

Eric Kingsley  16:17 
think that the business community in the chamber obviously likes private judging, because, you know, I mean, especially, you know, jury trials can can get out of hand. I mean, I understand on, you know, especially in a sexual harassment case, which now with the new law that Biden signed earlier this year, sexual harassment claims are excluded, which shows it was unanimous consent. So there were 100. Senators, I mean, think about how they divisive this country isn't good 100 senators on a voice vote, approve that bill, and and even large numbers of Republicans in the House voted for it wasn't overwhelming there. But and so you have to say to yourself, that maybe the me to movement, and the combination of Gretchen Carlson, who used to work at Fox News was pushing that Bill made it that sexual harassment was just like, okay, that goes so far, that we're not gonna allow private judges to hear those disputes. But why is that dispute any different than than any other employment dispute? And so it's interesting. I mean, even in the if you look at the fair tract, which is the act in Congress to basically carve out employment and consumer matters there, Matt Gaetz, the pretty far right wing congressman from Florida, it has been for many, many years been in favor of carving that out sort of a populist message, if you will. And even Senators Graham and Kennedy from Louisiana, have been favorable towards it. So there couldn't be a trend, I think developing here where, you know, both sides of the arm see forced arbitration as something that's not, you know, acceptable in the country.

Tim Kowal  17:47
Interesting. Well, let's want to ask a question from, from the other perspective, from this perspective of employers. Now, you know, a lot about employment law, and many of our listeners are attorneys, who are employers themselves running their own firms. Sometimes you hear these cases coming coming down, or you hear about these employment regulations. And you think, Oh, my gosh, you know, there's just so many traps for the unwary. Did I remember to give my, my assistant a break last Tuesday, or am I gonna get hit with a lawsuit? Or Did I did I remember to put out enough chairs for all my staff? Am I gonna get hit with a lawsuit? What can you say to to assure good faith employers that, you know, having fair employment in laws and enforcement procedures does not mean that you're gonna get hit with a lawsuit every Tuesday?

Eric Kingsley  18:32 
I mean, I hope not. I mean, it's, it's, it's not easy, I will, I will acknowledge that, that there are a lot of different things. But I would say that there's probably 10, you know, five to 10 really big things that you really have to worry about. I mean, meal breaks, you know, depending on what type of business you're in seating, you know, I mean, there are some smaller regulations that have to be complied with. I do think, though, that you is an employer of any size, you know, and especially small businesses, maybe less than 50 will be cheap about, you know, hiring labor counsel, because it's an easy cost to, to eliminate, but it's sort of short sighted because if you do do something wrong, then you know, the expensive the lawsuit is gonna be much greater than, you know, having somebody go through your handbook and give you certain basic advice on how to run your business or law firm or whatever it might be. But on the other hand, I also think that it's about treating people right, you know, if you treat people, right, most people and then I can't say this without exception, but I think most people are not going to seek out legal counsel afterwards. I mean, I can tell you that a lot of people all at my firm, really, really mad and feel like you know, disrespected to a large degree. And even if I can't help them in the thing that they're coming to, you know, let's say they think they have been wrongfully terminated, you know, in California and at will employment state so you can be terminated for any time any, any, any reason as long as not the wrong reason. And so they don't have a wrong reason. Then then typically that there's there's not a case there. But sometimes if you ask them a couple questions about wage practices, and did you get paid overtime? Did you get your breaks? All these sort of things? They said, Well, no, I didn't that really, you know, and so then all of a sudden that leads to another conversation, all of a sudden the employer could could have exposure. But if they never called the lawyer, they probably wouldn't have necessarily pursued it.

Tim Kowal  20:22
Right. Now, there are a lot of we keep hearing stories about a lot of companies picking up and moving to other states, like Texas and citing complaints about over regulation. And in your view is, is there an over regulation issue? Do we regulate employers, the right amount, are there? There's some things we're still missing? Or some things we're going overkill? What's your perspective on that?

Eric Kingsley  20:45 
I mean, I think there's probably, I mean, anybody can can have different opinions on this, you know, and so there's probably like, as it relates to the overall I think it's about right, there could be some areas where it's more in some areas last and you know, there's always I think, room for reform and sort of consolidating things, but I don't I hear

Tim Kowal  21:04 
on on bigger corporations who have their own HR departments rather than mom and pop shops, or, you know, single, single employers who, you know, have to make heads and tails of all of the regulations themselves are and it's going to be in, you know, economies of scale make it easier to hire lawyers to handle these things.

Eric Kingsley  21:23 
That's true. And I think the legislature has done a pretty good job in recent years where they've had some carve outs for like employers, less than 25 employees and minimum wage had a slower phase in for those those types of businesses. And so I know, in working with sila, California Employment Law Association, that there's always a sensitivity to some of the smaller employers and sometimes some of the regulations, you have to have a certain number of employees before they get triggered.

Tim Kowal  21:47 
All right, well, let's let's jump into Viking rivers. I'm almost scared to talk about Viking rivers because it I don't know that it means what it's what it says it means. And whatever it means is it going to be overcome by the recent Adolph case, it's been granted review in California, I understand wonder if you give our listeners a lay of the land of Viking rivers and maybe connect the dots from where we go. It's a recent Godus decision from just a couple of months back, but already, is it obsolete already?

Eric Kingsley  22:14 
Well, the defense bar certainly doesn't think so. So, you know, we're sitting here at the end of August 2022. And I've had at least 11 motions to compel arbitration. Since Viking came down. We've already argued two of them, we won one, we sort of lost the other, but we didn't really lose we, we were compelled arbitration, we come back to do our paga. I think that's the way a lot of them are gonna go down is the court may send folks to what's now called individual paga claims. It is a real hard onion to see.

Tim Kowal  22:47
Well, what let's start from the from the holding of Viking River. What was the issue in Viking River that the Supreme Court decided and what did it hold?

Eric Kingsley  22:55 
So there's really three different holdings. I mean, I guess, if you read the section two, there's four sections of the opinion. Section one is basically introductory, section two, is really interesting, because section two And section three sort of contradict each other. And there's been some speculation that maybe a Sotomayor clerk wrote, or Kagan clerk wrote section two, and that Alito, or Gorsuch clerk, you know, or themselves, you know, wrote section three, because they cite the same cases for different principles. And so to take a step back, so you have told us that the problem with these these arbitration cases in the US Supreme Court is they all build on each other. So there was a case called Stolt Nielsen that came down in 2010. That basically said that if you had a silent agreement, that that that a class action couldn't go to arbitration if the agreement was just silent. What's interesting about that case, is the parties stipulated that it was silent. And so over the last 12 years, if there was ever an issue of trying to go to arbitration, on an on a, quote, silent agreement, we the plaintiffs would never say it was silent. We would just say, well, it doesn't mention arbitration. But if you look at the wording of the agreement, it was it really the parties anticipated that there would be a class proceeding. And so Lamps Plus, which came down, I guess, last year or the year before sort of ended that it basically said, in order for a class action to go to arbitration, you actually have to say that the class action can go to arbitration. So having said that, Viking said in section two, it says, Look, we don't think anything in our authority suggests that paga is the same as a class, and that we don't see any problem with a power claim going into arbitration. So section two, I think, is a really interesting question how the federal and state courts are going to interpret that in terms of whether or not all of paga who go to arbitration, you know, if so, if you have an agreement that just doesn't say one way or the other, I think there's a good argument that you can actually compel that case to either side could compel that case to a pug arbitration. There's a couple California court of appeal cases one called Glen air, it's suggests otherwise. But you could argue Viking overrules Glen area because Supreme Court. So but then section three sort of says the opposite. Not really. It says if the party say they don't want to go to Pog arbitration, they can go to pod arbitration. And so I think that sort of makes sense. If the parties specifically say that, then you can't go. But then they also start to they say to assault Nielson, for that proposition. So it's sort of interesting how those are internally contradictory. And so then section four sort of builds on two and three. Maybe to sum it up. I think there's one Viking has they have three things. Viking had a waiver, severability clause and a savings clause. And that's the key to Viking, right. So a waiver, meaning you say I don't want hog arbitration, parametric arbitration is waived, you can't you can't do it. And then they had a severability clause that said, and the reason why the severability clause is important is because the Supreme Court actually said a scanning is still good law. Insofar as it doesn't interfere with the parties right to contract, you still have a right to do your representative paga. And so Vikings agreement had a severability clause that said if there's anything illegal in the contract that gets severed down. But then third, the Viking contract had what's called a savings clause. And what that savings clause said, Look, if there's a separate, if there's something illegal in this agreement, it gets severed out anything that remains in the agreement, that part goes to arbitration. And so at the end of the day, Alito basically said, Look, because the written was drafted this way, and because the FAA, we have to honor their contractual directive, you have to send it's crazy, really, the power gets gets cut in too. And so the individual paga, which there's no such thing under California law, and until Viking came down in June, gets sent to arbitration, the representative paga stays in court because of a scanning. But then in what we're saying is dicta. And this is where you This is where you get to the real crux of the debate right now, it says, but you're cutting, basically, and he doesn't say this in so many words, but in summary, and paraphrasing him, he's like, you're cutting off the head of the snake. And so when that's the head of the snake goes to arbitration, the body's going to die, because the head can't come back and get reattached to the body. And so he's saying he says, as we see it, that the individual loses standing. Now, Sotomayor, to her credit, maybe if we take a step back, there were a it was a two one decision, right, Thomas dissents, because he says this doesn't apply in state court, some crazy reason that you can't come up through the state court vehicle, if it was going through the federal court way, then he probably would come you would aside with the conservatives. So he was out of the picture. The liberal signed on to the opinion, and actually, the court of the opinion is actually only signed on by five, and you'd have for lack of a better word, the moderates, Roberts Barrett and Kavanaugh basically said we would strike pug entirely, but for whatever reason, Alito, and Gorsuch decided because of states rights issues, they signed on with the liberals for the core of the opinion, and, and basically said, you know, this is how it is you gotta have a savings clause and all that. But then at the end, you know, Alito wanted biking to win because he's, you know, pro pro business. And so he said, Viking wins, but Sotomayor and her concurrent says, Wait a second, you know, we could be wrong. And if we're wrong, the California legislature can fix it. Or if we were right, the legislature can fix it. And if we're wrong, the California Supreme Court basically have the last word on this, which brings us, Tim to your mentioning of the eight offers is Uber decision is eight offers Zuber in their issue presented are going to squarely address this standing question.

Tim Kowal  28:37 
Yeah. Well, I wanted to go back to what you said about the situations that Viking river cruises creates where you're going to have what is it the the individual is going to be going to be an arbitration or in the trial court.

Eric Kingsley  28:50 
So the No, the individual paga would be in arbitration. In addition to and this is interesting, this is more of a practice tip, plaintiff's lawyer should bring all their individual claims. And so if you're going to get pushed into arbitration, you should not only bring your individual paga, you should bring your pure individual claims. So any claims that you have just by statute, irrespective of paga, and if there's wrongful termination claims or other types of claims like that those should get brought into arbitration too, because you might as well.

Tim Kowal  29:20 
Okay. And so you've got that in arbitration. And then you've got you've got the rest of the the class so to speak in, in the trial court and what they're just stayed pending the outcome of the of the arbitration.

Eric Kingsley  29:35 
Presumably there stayed the there's an interesting argument floating around maybe if you read the way the appellate statute is, maybe they don't get state, maybe you run them concurrently. I think those arguments might start getting made. So

Tim Kowal  29:47 

you know, should Why was inconsistent rulings, potentially,

Eric Kingsley  29:51 

I guess that's true. So I mean, I guess the trial courts in the court of appeal will have to sort out whether or not they should be status scanning and sort of mentions it in passing but doesn't really say whether or not the claim should be stayed or not. And whether they go forward at the same time

Tim Kowal  30:05 
or whether one has stayed as soon as there is a favorable ruling to one party in either forum, isn't the other, aren't they going to rush into the other forum? Or is it the the other the other party is going to seek non non mutual offensive collateral estoppel. And in the other forum, are they

Eric Kingsley  30:23 

well, actually is mutual, although it's interesting. There was a unpublished opinion that came down on Friday, August 26, where the plaintiff lost in arbitration, the court said it wasn't. It wasn't didn't create issue preclusion. So maybe that'll get published maybe another case, we'll bring that issue up. So I don't think that's really sorted out yet.

Tim Kowal  30:40 
Interesting. So, so there are a lot of a lot of loose ends, I guess. Now, you have mentioned in your writings in the daily journal, I think that the defense bar, the employers look to Viking river cruises, and they see this is a big W, it's a big win for their side. But you suggested that maybe this could be wind up being a boon to to the plaintiffs bar,

Eric Kingsley  31:01

I wouldn't say it's a boon in the sense it's an annoyance to some degree. But I think if you look at it from a practical perspective, so let's say they win their motion to compel arbitration and the individual paga goes to arbitration. So now you have to litigate that claim. In arbitration, I understand employers think maybe they have a better shot at winning in arbitration, because of the whole repeat player idea and all that sort of thing. But you're a plaintiff's lawyer, and you're bringing good claims, and you win at least one of your haga claims. And the paga claims are relatively small, if you think about it, because the paga penalty when it's large in the aggregate, but for one person, it's small, because it's like 100 bucks a pay period. So if you have a one year claim, somebody's paid twice a month, to $2,400 claim. So an arbitrator might be like, okay, 2400 bucks, maybe I'll strike him on some of these other things that he's bringing in award $2,400, right. And it goes back to the trial court, and now the employer is going to pay plaintiff's lawyers fees, the defense lawyers fees, and the arbitrators fees. So that's like, probably 150 $200,000, like minimum, and now you're going back to the trial court. And now you've just won $2,400. And you say to the trial court, well, like you just mentioned, Tim, non neutral offensive collateral estoppel, we won, like, Okay, now the question is damages, and the court is like, what did the arbitrator do? Well, I'm trying to give me 100 cents on the dollar. So then now, when the defense is trying to argue, oh, it should be some small number, like 10 cents on the dollar on the paga claim, because the court has discretion, the court is going to be anchored to that larger number that the arbitrator is going to award just for one person. But now you've got 500 people, maybe the judge is more inclined to give a higher amount. And so I think defense lawyers should think long and hard, especially in smaller companies, if they're going to come out ahead of the game on a business side by going through this whole process. Yeah,

Tim Kowal  32:48
you know, to go back to this, this Adolph versus Uber Technologies case, I just want to make sure I understand how that comes about and how that plays into the Viking river cruises analysis. I think it has to do with there was there was some dicta in the decision in the Viking river cruises case that that has that references that a plaintiff can maintain non individual paga claims in an action only if if that if that claim is being maintained an individual claim in the same action. And so when you separate them, I guess you it destroys standing in this analysis of the dicta. And that's where you point out that Justice Sotomayor says, Well, maybe yes, maybe no, that's a state law determination. And and is this where eight offers his Uber Technologies comes in? It's going to decide the standing issue?

Eric Kingsley  33:36
Yeah, I mean, and it goes back to the Kim versus reigns case, because at the end of the day, you know, Kim versus reigns said once aggrieved, always agree. Now, the facts are a little bit different here in the sense that so when Kim was an overtime claim, under the overtime statute under the labor code, right, and then we were trying to bring an overtime claim under paga. And so the court said, just because he settled his overtime claim under the labor code, he could still stand in the shoes of the state, and bring the paga claim on behalf of the state. So that's settled law. So then the second question, then is if he settled his individual paga, so it's a little bit different, because within the same statute, can he continue to represent the other aggrieved employees inside the paga statute once he comes back to court after arbitration? I think the same principle applies, though, in the sense that in kin versus Rames, the court said once aggrieved, always aggrieved, I was having a conversation with a defense lawyer the other day, and I said, Can you name me one, California or California Supreme Court case, where the justices ruled in a pro employee or matter in the last 10 years? And he couldn't name one? I don't I don't I mean, we probably could if we went through the list, but it doesn't happen very often. So if you were if you're betting on this, you know, the calla convention is coming up and you know, all these plaintiffs lawyers are going to Vegas. So be if there was a betting window and we could bet on ADA versus Oops. I mean, I imagined the odds would be horrific. You know, I'd have to put down $100 to win 10.

Tim Kowal  35:06 

Yeah, yeah.

Jeff Lewis  35:07 
Hey, are you going to be filing an amicus brief regarding eight off case?

Eric Kingsley 35:12 

I have not been asked. But I guess if if Michael Rubin needs needs some help, I would be happy to help out on that. Yes, absolutely. Okay.

Tim Kowal  35:19 
Well, I told Jeff, that that I was scared to talk about Viking river cruises if because it's going to make my head hurt. And I think that's been borne out. This seems like so many ins and outs and ups and downs. And what have you. Is it mind good company here? Are there? I mean, I can't imagine having one of these cases and not consulting a specialist. And I repeat, I think that, that what you do is plaintiffs? Well, plaintiffs or defendants employment law should be its own area of legal specialty recognized by the state bar after this conversation. I appreciate that

Eric Kingsley  35:49 
I actually don't think it's as complicated as it seems, once you get into it right after the opinion, I actually drafted up a flowchart that's I've circulated a couple of different CLAS. I mean, it's, you know, there's about six or seven weigh stations along the way. And there's, there's things you should look for. But I can tell you, if somebody sends, and I'm happy to do it, you know, people send me arbitration agreements, you can look through it in about four to five minutes. And you can identify, I mean, if there's about two paragraphs, you want to look at the scope of the agreement, because sometimes it can, you can fall outside of the scope of the agreement, and that haga may not be included, depending on the language. One of the problems there was the people were trying to anticipate what the Supreme Court was going to do. And I don't think anybody anticipated this. And so the length the language is drafted in an odd way. And then you'd have to look and see, are there severance clause severability clauses? Or are there savings clauses? You know, and I think that's the crux of it. So it gets a little deep in the weeds. And it sounds more complicated than it is. But I think if you read the opinion through two or three times, you kick in, it kicks into your brain.

Tim Kowal  36:49
Got it? Well, but the problem seems like it's not it's not going to have a very long shelf life. It's a it's already morphing, at least here in California are potentially going to morph with the aid off case.

Eric Kingsley  36:59 
I think that's right. And the legislative session, they did not address it. So but I think that next year, we may also, I mean, it's interesting, we may see a bill and 23 to try to address it. And then the other wrinkle is that there's a ballot initiative that qualified for the November 24 ballot. I think they were trying to qualify it for this year, but they were not able to get the signatures in time. So it's qualified for the 24, November 24 ballot, you know, so we could see ads on TV, you know, in two years time telling us evils of paga. And the lawyers trying to trying to hurt employee employees or whatever it is,

Jeff Lewis  37:34 
Hey, Eric, you seem to have your pulse, your finger on the pulse of what's happening in Sacramento in terms of employment law, there was an effort a couple years back to make to legislate a four day workweek for employees. Do you see and it didn't? It didn't go through it died? Do you see that as a realistic direction that California is going to go in terms of four day workweeks?

Eric Kingsley  37:54 
I don't remember hearing about that. I don't I haven't heard about it in a while. I mean, you know that. It's interesting, though, that you could do that, if you want to the Labor Code provides for an alternative work week schedule that can be voted on by the employees, and they can work for 10 or even a 312. if they so choose, you have to go through this alternative work week election procedure and file it with the state

Jeff Lewis  38:13 

secret ballot. And this Yes, yes,

Eric Kingsley  38:15 
it's in the

Jeff Lewis  38:16 
we want to be the one guy that says I want to five days I don't want a three day weekend. You know what that guy being outed?

Eric Kingsley  38:22 
I know, there's a trend amongst like office workers, law firms. I've heard where folks are coming into the office, fewer days, but they don't want workers coming in on Mondays and Fridays. They they want them coming in on either Monday or Friday. They don't want them staying home on both days.

Jeff Lewis  38:38
Right, right. All right. Let's talk about the last case. As we wrap up. The last case I want to ask you about today is the AutoZone case involving employers providing seating for employees. Can you tell us a little bit about that case and your role in in what was it about?

Eric Kingsley  38:51 

So I had a minor role. I was kind of the producer of this. I want to shout out to my colleague, Ari Stiller, uh, he he really drafted the briefs. And he actually argued in the Court of Appeal. I just got my name on it, I guess. But that case was interesting, because the what Autozone did was they are what we brought a claim, claiming that Autozone did not provide suitable seating for its employees. And we were taking the view that like a cashier can sit and go to Europe. Supermarkets are the types of place like that cashiers are almost always seated. For whatever reason in the United States, seating of cashiers even like tellers and banks, until recently, I think you start to see that more when we were growing up by never, tellers were always standing. And the idea is that from a medical standpoint, it's just not healthy, frankly, to stand all day long for eight hours a day. And I don't think we were suggesting that you had to sit, you know, eight hours a day, obviously, there's times that you would have to be doing things and you might be walking around the store, but the idea is that when you could sit you should be able to sit. And so we took the view and the Court adopted it. I mean, in the case of Brinker from 2012, which was this sort of land landmark case about meal breaks the suit, California Supreme Court laid out a standard that you had to provide sort of some kind of a policy document to employees, indicating that they could take breaks, you know that you didn't have to ensure that they got their breaks, but you had to make them available. And so we took the same approach to seating, saying that, and I should say that there's two types of seating cases, their seating case where they say there's no way you could provide seats. And so you have to sort of fight that argument whether the nature of the work is such that it's practical to provide a seat. But this case was they didn't say that it was impractical to provide a seat. They said we had seats, but they were like 100 feet away. And so we made the argument that he didn't tell them that they could take these seats, and you didn't do a good enough job of providing them in the same sense as Brinker. And so the court agreed with that it was a summary judgment that we had lost in the trial court, and it was reversed. So it doesn't mean when actually win the case. But it just means that we get a fair shot in front of the jury to ask the jury whether or not Autozone did a good enough job in terms of providing those seats?

Tim Kowal  41:06
This would be an example of something I had in mind when I asked you the question earlier about good faith employers who are you just want to make sure that they are not running afoul of something I wonder if there's is there some sort of an opportunity to cure in the event that you're not providing your employees something that they ought to be entitled to? Or or whether the law currently requires it or a court may find that the law requires it? Is there an opportunity? Is there some sort of duty on the on the on the part of the employee to give a notice to cure?

Eric Kingsley  41:35
I mean, maybe I think actually, I am trying to think back here to the CNAME record, I'm not sure. So paga has a weird, there's three parts to paga. There's 2699 26 9.3, which has more explanations, and then 26 9.5, which is just a list of statutes. And it's like 60 Plus statutes are listed there. And so those statutes are not curable, and anything else is curable. And so yes, seedings coming out of the wage orders, so may that might not be curable. But But be that as it may, I mean, that's, I think, an interesting discussion about paga is whether or not should be curable. In my experience, though, having filed a few non curable paga claims. In my day. Employers don't cure I mean, right now, currently, nine, my understanding is, I don't know, I could be wrong about this, at least as far back as when my client was working there, they didn't have any kind of a seating setup. And so in many cases, I had a case one time where we filed a case a pirate case, because they did not have a bank in California, where they could cash the check labor code to 12 says that you have to there has to be someplace in the state could be anywhere. I mean, you can have it in your Rica, you know, you know, you can have it in some random rural county, a bank that could cash the cheque that would meet the definition of the statute. And these guys had, it was a very large company, you know, at least a fortune 1000 company that had Bank of New York, and Bank of New York has no branches in the state of California. And we litigated that case for like three years, we had some other claims in it as well, and they did not fix that problem. And so the the problem continued to grow. So it's funny when you talk about employers curing things, it sounds nice, but I've found they rarely take the state up on that ability to cure.

Jeff Lewis  43:24 
Wow, they kind of draw the line and stand their ground. Interesting. Yes. You know, I gotta apologize. I stalked you a little bit on Facebook. To prepare for today's interview, I noticed that you were invited to a dedication ceremony for the Dr. Sally Ride Memorial Highway, and it was wondering who's Dr. Ride and how did you come to be invited to that ceremony?

Eric Kingsley  43:46 

So my good friend, Jesse Gabriel is in the California legislature. And so they decided they were he represents the sort of West San Fernando Valley west of the 405 to the LA County line. And they were trying to, you know, they're trying to find naming rights, and especially there's most of the transportation infrastructure in the state is named after men. And so if you can find a woman that's that's, you know, deserving of recognition. We want to create some equity, parody balance. And Dr. Sally Ride was the first woman I believe that was in space. I'm remembering this correctly. And she grew up in Encino. And she was a professor, I believe she went to Stanford and then she worked in San Diego and she she died relatively young because of some some ailment I believe in maybe it was cancer, I might be getting those facts wrong. And so that was somebody that clearly, you know, made it up to the highest echelons of NASA, actually, you know, was was in space. And she was a resident Encino and so this was something in the district that made sense to to name after Dr. Sally Ryan.

Jeff Lewis  44:51 
Nice. Nice. She was a valley girl who made it to space. Exactly. I don't know about you. I'm really fired up about the reinvigoration of the Moon Landing program the Artemis launch was supposed to happen this week got scrubbed, but fired up and they're gonna have a woman teed up to land on the moon. So I'm fired up about that.

Eric Kingsley  45:09 
That will be great. I, if you're any of your listeners watch the show on Apple TV for all mankind. Oh, yeah, that story tells an alternative history we were really invested hard in, in space. And by nine in the 90s. We were on Mars already. So we're, we're way far behind from where that show envisioned us in terms of our space progress. Yeah, yeah. Although

Jeff Lewis  45:28 
I've heard that Tesla is working on a program to get us to Mars. And there's, you know, healthy competition between NASA and Tesla in terms of we're not Tesla, SpaceX, I should say, Yeah, this is a great show. And it's a treat to watch us catch up to the fantasy of that show. All right. Well, listen, we've we've covered a lot of topics here today, are there any other aspects of your practice, or embarrassing Law School stories about me that you want to share with our audience? Before we conclude, please embarrassing

Tim Kowal  45:54 
lost lots of

Eric Kingsley  45:58
stories. I do have one other interesting case, that's actually in the court of appeals that probably will be argued, either later this year or early next year, dealing with outside sales exemption, we represented them, the folks that actually give you your samples in Costco, the employees that work those booths, and it's actually a third party company that actually provides those employees that they work in the Costco. And they brought in motion for summary judgment on the issue of the outside sales exemption, claiming that they are outside, not working at the headquarters of the company, and that they're selling. And so we oppose it on both grounds today, they're not selling, they're really just, you know, you know, just providing a service and providing samples and so forth. And that also, that outside is crazy that this is really intended for the, you know, Willy Loman type, you know, traveling vacuum cleaner salesman, but the court granted summary judgment, and so we're excited about that case, we feel confident that that court just got it wrong and appeals will will resolve that that's in the First District Court of Appeals, hopefully later this year.

Jeff Lewis  47:01
Oh, interesting. Well, keep an eye on that. Maybe we'll invite you back to talk about it. After that. Maybe winds its way up to the courts. Like can we really end up to the California Supreme Court again?

Eric Kingsley  47:09 
I'd rather win it in the first. Yes. Who knows?

Jeff Lewis  47:13
You never know. You never know. All right. Well, listen, Eric, we want to thank you for your time here. I think that wraps up this episode. Again, we want to thank case text for sponsoring the podcast each week, we include links to the cases we discussed using case techs and listeners the podcast can find a 25% discount available to them if they sign up at

Tim Kowal  47:33 
and we want to remind our audience if you have suggestions for future guests or issues to talk about on future episodes, please email us at info at cow And in our future episodes, we'll be covering more tips on how to lay the groundwork for an appeal and preparing for trial. Alright, see you next time. Thank you so much.

Announcer  47:51 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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