Iskanian and the Future of Arbitral Class and Representative Action Waivers

The California Supreme Court's ruling in Iskanian v. CLS Transportation held that United States Supreme Court precedent abrogated its decision in Gentry v. Superior Court, and that a state's refusal to enforce a class-waiver on grounds of a state public policy or unconscionability is preempted by the Federal Arbitration Act ("FAA"). The Court likewise rejected that a class-waiver is unlawful under the National Labor Relations Act ("NLRA"). However, the state high court also held that neither United States Supreme Court precedent nor the FAA preempt state law that prohibits waiver of an employee's right to bring a "representative" action under California's Private Attorneys General Act of 2004 ("PAGA"). So, what's next? Should you now consider arbitration agreements with class action waivers for your workforce? If you already have an arbitration agreement, what should you do to revise it? Are PAGA waivers finished?

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