The New Reality for Representative PAGA Claims

California courts continue to grapple with whether representative Private Attorneys’ General Act (PAGA) claims must be stayed pending resolution of the plaintiff’s individual PAGA claims in arbitration.

This article traces the development of that question from Iskanian through Viking River and Adolph, examines how recent decisions in the 9th Circuit are shaping the practical realities for both plaintiffs and defendants, and highlights an additional strategy to avoid arbitration through the Federal Arbitration Act’s (FAA) transportation worker exemption. 

From Iskanian to Adolph: The Evolution of PAGA Arbitration Law

Three major court decisions over the past decade have shaped the framework for arbitrating PAGA claims. 

In 2014, the California Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC held that while individual wage-and-hour claims can be compelled to arbitration, any agreement waiving representative PAGA claims is unenforceable. 59 Cal. 4th 348, 364, 384–89 (2014).

Years later, the U.S. Supreme Court weighed in with Viking River Cruises, Inc. v. Moriana, holding that individual PAGA claims may be compelled to arbitration, and that once compelled, the plaintiff loses standing to pursue representative PAGA claims in court. 596 U.S. 639, 662–66 (2022).

The California Supreme Court soon responded in Adolph v. Uber Techs., Inc., taking a different approach. It held that plaintiffs who are compelled to arbitrate their individual PAGA claims retain standing to pursue representative claims in court, so long as they remain an “aggrieved employee”. 14 Cal. 5th 1104, 1123–27 (2023). (A plaintiff ceases to be an “aggrieved employee” if the arbitration results in a win for the defendant-employer on the merits or a settlement that extinguishes the Labor Code violations against the defendant.)

Adolph not only preserved standing for plaintiffs after their individual claims were sent to arbitration, but it also confirmed that trial courts have broad discretion under Cal. Code Civ. Proc. § 1281.4 to determine how the two tracks should proceed. Courts may stay the representative action pending the outcome of individual arbitration. Alternatively, courts may allow representative PAGA claims to proceed in parallel with individual arbitration, declining to stay the case where efficiency, fairness, or other case management considerations support it.

This broad discretion means that, after Adolph, outcomes can vary: some judges favor a stay to avoid duplicative proceedings, reduce cost, streamline discovery, and to await clarity on standing, while others permit parallel litigation to prevent delay and to prevent delay. This outcome maintains pressure on employers and provides plaintiffs with additional leverage. 

Stays Versus Parallel Proceedings: The Judicial Divide 

In January 2024, Proskauer published an article observing that the overwhelming majority of courts applying Adolph have stayed non-individual PAGA claims until individual arbitration is completed. The piece also noted that only a handful of courts have taken the opposite approach, allowing representative claims to proceed in parallel. According to the authors, most of these outlier decisions misinterpret Adolph as mandating parallel litigation whenever standing is preserved. In Proskauer’s view, Adolph simply preserves standing, it does not prohibit a court from staying those claims.

As of September 2025, most California courts continue to stay class representative PAGA claims pending resolution of individual PAGA claims in arbitration. However, two recent Alameda County cases allowed representative PAGA claims to proceed alongside arbitration, not due to a misreading of Adolph, but because the courts exercised their discretion to allow both tracks to proceed simultaneously. 

One of these decisions, Bernstein v. Compile, Inc., is only a tentative ruling and could still be overturned, but it nonetheless illustrates that some courts are deliberately choosing parallel proceedings rather than defaulting to a stay of the representative PAGA action.

Fan v. Maplebear (Sup. Ct. Alameda Cnty. 2025)

In Fan v. Maplebear, Inc. (January 22, 2025), a California Superior court read Adolph as permitting, not mandating, a stay under CCP § 1281.4.

The court followed Adolph’s observation that proceeding this way is not impractical, citing the line that “Uber makes no convincing argument why this manner of proceeding would be impractical” and concluded parallel tracks are practical and therefore permissible. 

In Fan, since the court was confronted with conflicting appellate decisions (Jarboe and Leeper), detailed below, and no controlling California Supreme Court authority exists on whether § 1281.4 requires a stay or permits parallel proceedings, the court used its discretion to select the line of authority it found more persuasive (citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456). 

The two conflicting California decisions that the court considered were: Jarboe v. Hanlees Auto Grp., 53 Cal. App. 5th 539, 555 (2020), wherein the court recognized that trial courts have discretion to deny a stay of a representative PAGA claim even if some facts overlap with claims being arbitrated; and Leeper v. Shipt, Inc., 107 Cal. App. 5th 1001 (2024), under which the court treated a stay as effectively required once the individual PAGA component is sent to arbitration.

The trial court found Jarboe more persuasive because it recognized trial-court discretion under § 1281.4 to sever the controversy and limit the stay, allowing the representative PAGA claim to continue in court while the individual PAGA proceeds in arbitration. By contrast, Leeper did not grapple with § 1281.4’s final sentence authorizing a stay “with respect to that issue only,” nor did it reconcile its approach with the California Supreme Court’s guidance in Adolph that a stay of non-individual claims is permitted, not required. 

The court further reasoned that if Adolph requires severing PAGA claims for purposes of compelling arbitration of the individual component, then the same severance principle supports allowing the representative claim to move forward in court. The court therefore exercised its discretion to follow Jarboe as more consistent with the statutory text, Adolph’s reasoning, and the public-enforcement nature of the PAGA statute.

​​The court determined that conducting the individual and representative PAGA claims in parallel was appropriate because PAGA actions are fundamentally law enforcement actions brought on behalf of the state, not private disputes between employers and employees. Representative PAGA claims, which seek penalties for violations affecting other employees, are legally distinct from individual PAGA claims and can be severed for procedural purposes. 

The court found no practical or legal barrier to allowing both tracks to proceed, noting that delaying the representative claim would undermine PAGA’s public enforcement purpose by halting the state’s ability to pursue penalties for broader Labor Code violations. Additionally, the court reasoned that if PAGA claims can be split for arbitration, they can likewise be split for case management, and that any risk of overlap or inefficiency could be managed by the court. 

Bernstein v. Compile, Inc. (Sup. Ct. Alameda Cnty. 2025)

In its tentative ruling on June 30, 2025, the Alameda County Superior Court reviewed the post-Adolph landscape for PAGA claims. The court granted the motion to compel arbitration of Bernstein’s individual PAGA claims but refused to stay the representative PAGA claims pending arbitration. The court relied on its previous reasoning in Fan v. Maplebear Inc., where it held that when a PAGA claim is severed into individual and representative components for arbitration purposes, the individual claim may proceed in arbitration while the representative claim continues in court. The court adopted this approach, emphasizing that the severance of claims under Adolph should also apply to the question of whether representative claims must be stayed.

Similarly to Fan, the court further rejected the defendant’s argument, based on Leeper, that the representative claims should be stayed. Citing Fan, the court reaffirmed that PAGA’s remedial purpose would be frustrated by staying representative claims, and that courts are well-equipped to manage parallel proceedings, even where factual overlap exists. 

Pending a final decision expected in late 2025, the tentative ruling in Bernstein underscores that, for now, representative PAGA claims can proceed in court even while individual claims are sent to arbitration under current California law. 

The Transportation Worker Exemption: A Pathway for Plaintiffs to Avoid Arbitration

Arbitration agreements are generally enforceable under the FAA, but § 1 excludes transportation workers, which includes “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” If employees qualify as transportation workers, the FAA does not apply, which means employers cannot compel arbitration under federal law. Courts then look to state law, like the California Arbitration Act, where there are more robust protections against enforcement of class/PAGA waivers.

In wage-and-hour/PAGA litigation, if the transportation worker exemption applies, it offers a more predictable strategy for avoiding arbitration than relying solely on PAGA claims. But plaintiffs who are not transportation workers often must proceed under the PAGA framework, where courts may compel individual claims to arbitration and stay representative claims, creating a patchwork of outcomes that, as illustrated above, depends heavily on judicial discretion. Because the transportation worker exemption effectively removes the FAA from the equation, it provides a clearer and more durable pathway to keeping claims in court.

In recent years, courts in the Ninth Circuit have adopted a broad interpretation of who qualifies as a transportation worker. Several pro-plaintiff rulings illustrate how expansive this exemption has become:

Madrigal v. Ferguson Enterprises, LLC (C.D. Cal. 2025)

In Madrigal, the court held that a delivery driver who transported plumbing and HVAC parts solely within California qualified as a transportation worker under the FAA’s Section 1 exemption. Madrigal v. Ferguson Enters., LLC, No. 2:24-CV-00733-MRA-JPR, 2025 WL 1226669 (C.D. Cal. Apr. 18, 2025). Many of the goods originated outside of California, and even though they sometimes remained in a warehouse for weeks before delivery, the court found that the interstate journey wasn’t over until the goods reached their final customers. 

Because the FAA did not apply, and the class-action waiver was also unenforceable under California law, the court denied the employer’s motion to compel arbitration.

It should be noted that the defendant appealed this ruling on April 28, 2025  date, and the ruling is currently pending.

Tisdale v. Apria Healthcare LLC (C.D. Cal. 2025)

In Tisdale, the court determined that couriers who delivered home medical equipment within California qualified as “transportation workers” under the FAA exemption. Tisdale v. Apria Healthcare LLC, No. 2:24-CV-09620-AH (PVCX), 2025 WL 1356942 (C.D. Cal. Apr. 24, 2025). 

Much of the equipment came from outside California, and although it often paused at distribution centers or branches for extended periods, the court found that the interstate journey continued until the equipment reached customers, making the couriers the final link in the chain of interstate commerce. Because the FAA did not apply, the court refused to compel arbitration.

Similar to Madrigal, this case was also appealed on May 28, 2025, with a final ruling pending.

Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024)

In Ortiz, the court held that a warehouse worker qualified as a transportation worker, even though his duties were confined to moving products within a California warehouse. Ortiz v. Randstad Inhouse Servs., LLC, 95 F.4th 1152 (9th Cir.), cert. denied, 145 S. Ct. 165 (2024). 

The products originated from mostly international locations, and the court found that the plaintiff’s role was “direct and necessary” to and “intimately involved with” the continued movement of goods in interstate commerce because he processed and stored them for further shipment across state lines. As a result, the court held that the FAA did not apply, and the arbitration agreement could not be enforced under federal law.

Lopez v. Aircraft Service International, Inc. (9th Cir. 2024)

In Lopez, the court held an airline fuel technician qualified as a transportation worker, even though he had no hands-on contact with goods or cargo. Lopez v. Aircraft Serv. Int'l, Inc., 107 F.4th 1096 (9th Cir. 2024), cert. denied, 145 S. Ct. 1063, 220 L. Ed. 2d 387 (2025). The Ninth Circuit reasoned that his work, fueling planes, is essential to keeping them operational and engaged in interstate (even international) commerce. Therefore, the FAA did not apply, and the arbitration agreement could not be enforced under federal law.

These decisions show that courts are willing to treat a wide range of workers as part of interstate commerce even if their jobs appear local or intrastate on the surface, exemplifying how the transportation worker exemption is often a more predictable and durable way to avoid arbitration than relying solely on PAGA. Where the exemption applies, the FAA no longer governs the arbitration agreement, removing the federal mandate employers often use to force cases out of court (though arbitration could still proceed under state law if an arbitration clause is otherwise enforceable).

By contrast, PAGA-based strategies remain less certain: while Adolph protects representative claims, plaintiffs will still face arbitration of their individual claims, probable stays of their representative PAGA claims, and inconsistent results, depending on the judge. The transportation worker exemption, where it fits, offers a clearer path to keeping cases in court for plaintiffs’ attorneys.

This Might Interest You:

• Penalties for Misclassifying Employees as Independent Contractors
• Employee Misclassification: Navigating the Legal Landscape