After two recent California Court of Appeal cases differed on “headless” Private Attorneys General Act (PAGA) actions, the California Supreme Court announced that it is taking up the issue (Leeper v. Shipt, Inc. S289305 (April 16, 2025).
The court’s order, which was made on its own motion (i.e., the case parties didn’t request it), directs the parties to brief and argue the following two questions:
- Does every PAGA action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims?
- Can a plaintiff choose to bring only a non-individual PAGA action?
“Headless” PAGA Actions
In 2023, in Adolph v. Uber, the California Supreme Court held that a PAGA plaintiff whose individual claims are compelled to arbitration does not lose standing to litigate their non-individual (representative) PAGA claims in court. With the law clear that employers could compel individual PAGA claims to arbitration, some PAGA plaintiffs attempted to avoid arbitration by filing “headless” PAGA actions that purported to include only representative PAGA claims that wouldn’t be subject to arbitration.
Differing Court Approaches
Currently, the lower courts are split in how these “headless” PAGA claims are being treated — as the California Supreme Court acknowledges.
In Leeper v. Shipt, 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 — and concluded that “every PAGA action necessarily includes an individual PAGA claim.” Thus, the court held that the case could be compelled to arbitration, even though the plaintiff’s complaint did not specifically allege an individual PAGA claim.
Then, a subsequent case from the Fourth District Court of Appeal, Rodriguez v. Packers Sanitation Services LTD., LLC., disagreed with the Leeper court. According to that court, while all PAGA actions should contain an individual PAGA claim, a court must determine whether a particular complaint does in fact contain an individual claim. In the context of a motion to compel arbitration, the court’s role is to examine the complaint at issue to determine if there is an arbitrable claim, not to read such a claim into the complaint (which is what the court concluded was done in Leeper).
The lower courts’ differing approaches of whether a plaintiff can avoid arbitration by bringing a representative-only PAGA case has created uncertainty for employers that utilize arbitration agreements. With this order of review, the California Supreme Court will provide a definitive answer to the question of whether plaintiffs can continue to use “headless” PAGA actions to avoid arbitration of PAGA claims.
Erika Barbara, Senior Employment Law Counsel, CalChamber
CalChamber’s newest interactive, online training, “Supervisor Essentials: Wage and Hour Training,” can help supervisors and managers understand key wage and hour topics they will encounter while supervising California employees. Supervisors are often directly responsible for enforcing wage and hour policies in the workplace, so it is critical that they receive proper training to minimize the risk of many common legal issues, including PAGA claims.
