In late 2024, the use of “headless” Private Attorneys General Act (PAGA) actions — actions that do not allege an individual PAGA claim — was dealt a significant blow in Leeper v. Shipt, Inc. But now, another California court has taken a different approach and affirmed the denial of a motion to compel arbitration of a headless PAGA action, finding that the case could not be compelled to arbitration because the plaintiff’s complaint did not specifically plead an individual PAGA claim (Rodriguez v. Packers Sanitation Services LTD., LLC. (D083400, February 26, 2025).
Although the Rodriguez court did not address the specific issue present in Leeper (whether every PAGA action necessarily contains an individual PAGA claim that can be compelled to arbitration), the decision does create some uncertainty regarding how courts will respond to motions to compel arbitration of these types of PAGA cases.
Arbitration of PAGA Actions After Viking River and Adolph
After the U.S. Supreme Court’s 2022 decision in Viking River Cruises v. Moriana that an employee’s individual PAGA claims could be separated from their non-individual (or “representative”) PAGA claims and compelled to arbitration, and the California Supreme Court’s 2023 decision in Adolph v. Uber that PAGA plaintiffs could continue to pursue their representative claims in court after their individual claims were ordered to arbitration, some PAGA plaintiffs attempted to avoid arbitration entirely by filing PAGA actions that purported to include only representative claims that wouldn’t be subject to arbitration.
Leeper: All PAGA Actions Include an Individual Claim
In Leeper, the Second District Court of Appeal considered how a PAGA action is defined under the law — specifically, whether a PAGA action includes both individual and representative claims. The court concluded, based on the PAGA’s plain language and legislative history, that “every PAGA action necessarily includes an individual PAGA claim.” Thus, the court held that the action was subject to arbitration, even though the plaintiff’s complaint did not specifically allege an individual PAGA claim.
Rodriguez: The Court Must Defer to the Plaintiff’s Complaint
In Rodriguez, the plaintiff’s complaint stated that it was alleging a PAGA claim “in a Representative Capacity only” and not asserting an individual PAGA claim. The defendant employer moved to compel arbitration of the plaintiff’s individual PAGA claim, and the trial court denied the motion on the ground, finding that the PAGA claim was not subject to arbitration.
The Fourth District Court of Appeal affirmed the denial of arbitration, holding that the plaintiff’s complaint did not contain an individual PAGA claim that could be compelled to arbitration. The court’s decision was based on its evaluation of the plaintiff’s complaint and its conclusion that the complaint did not specifically plead an individual PAGA claim.
The court acknowledged the holding in Leeper but stated it was not persuasive. The court disagreed with the Leeper court’s conclusion that because an individual PAGA claim is a necessary component of a PAGA action, all PAGA actions must include an individual PAGA claim. Instead, the Rodriguez court explained, the proper conclusion is that all PAGA actions should contain an individual PAGA claim, not that a particular complaint does in fact contain an individual claim. In the context of a motion to compel arbitration, the court noted, the court’s role is to examine the complaint at issue to determine if there is an arbitrable claim; it should not read such a claim into the complaint, as the court concluded was done in Leeper.
The court declined to address the question of whether it is permissible for a plaintiff to file a PAGA complaint that asserts only representative claims because that issue was not presented to the court on appeal. However, the court noted that if a plaintiff files a PAGA complaint without alleging an individual claim, the complaint may be subject to a pleading challenge.
Differing Approaches to Determining Arbitrability of Headless PAGA Complaints
Given the differing approaches of the Second and Fourth District Courts of Appeal, employers’ strategies for compelling arbitration and/or challenging the complaint in headless PAGA actions may vary depending on the court in which the case is being heard. Employers utilizing arbitration agreements should consult with legal counsel regarding the impact of these decisions on any pending or anticipated PAGA actions.
Erika Barbara, Senior Employment Law Counsel, CalChamber
Concerned about wage and hour and PAGA compliance? CalChamber members can use the Wage and Hour Payroll Audit Checklist for California Employers on HRCalifornia. Not a member? CalChamber’s PAGA Wage and Hour Compliance Toolkit can help you.
