Arbitrator Does Not Decide Whether Plaintiff Was an Employee or Independent Contractor Under PAGA

Arbitrator Does Not Decide Whether Plaintiff Was an Employee or Independent Contractor Under PAGA

On April 30, 2021, a court of appeal in Rosales v. Uber Technologies, Inc. affirmed a trial judge’s denial of the employer’s motion to compel arbitration of the plaintiff’s lawsuit that alleged a single cause of action for wage violations under the Private Attorneys General Act (PAGA). The plaintiff was an Uber driver who had signed an agreement stating she was an independent contractor, that all disputes would be resolved by arbitration under the Federal Arbitration Act, and that the arbitrator would decide questions regarding the enforceability or validity of the arbitration provision. The Rosales court rejected all of the employer’s arguments stating that the threshold question of whether the plaintiff was an employee who could seek penalties under PAGA on behalf of the state, or an independent contractor who cannot, may not be delegated to an arbitrator.