Michael Rubin

SAN FRANCISCO - Michael Rubin's distinguished pedigree as an appellate, class action and impact litigation partner at Altshuler Berzon LLP began in 1978 when he joined the State Bar. It continued with clerkships for Justice William J. Brennan Jr., Circuit Judge James R. Browning and U.S. District Judge Charles B. Renfrew.

He is a fellow of the College of Labor and Employment Lawyers and a former board member of the AFL-CIO's lawyers' coordinating committee. He has won seven CLAY awards from The Daily Journal.

Rubin is currently in the thick of the ongoing debate over the place of mandatory arbitration clauses in employment contracts under California's Private Attorneys General Act. He's upbeat about what's been characterized as a loss for workers in the U.S. Supreme Court's 8-1 June decision in Viking River Cruises Inc. v. Moriana, 20-1573.

"This may turn out to be one of the shortest-lived Supreme Court victories in history," said Rubin, who was among those representing cruise ship employee Angie Moriana. "I was happier to lose 8-1 here than I was to win some cases."

Rubin's point: the high court's ruling is not the last word on whether compelling a worker's individual PAGA claim to arbitration strips the worker of standing to also pursue a representative action. That issue will be decided in an upcoming state Supreme Court case in which Rubin represents the worker seeking PAGA status for his driver misclassification claim. Adolph v. Uber Technologies, Inc., S274671 (Ca. S. Ct., rev. granted July 20, 2022).

The plaintiff is Erik Adolph, who worked for Uber Eats in Orange County and complained that the company refused to pay the costs of fuel, parking and repairs -- expenses that are required for employees but not for contractors.

Rubin contended that corporate America is headed down a losing path. "All of this is just one more example of employers hoping to use arbitration agreements to immunize themselves from liability," Rubin said. "The costs should cause them to question whether they should continue with arbitration at all. By imposing unfair terms on workers, they're just buying into expensive, extended litigation over enforceability."

He added that the issue of litigants' standing in PAGA cases is explicitly one for the states, and the Viking River opinion doesn't change that. The state Supreme Court is the highest authority on the meaning of state law. "These questions of standing turn on state law rules and it's up to the states to apply their traditional procedures of contract construction to commercial contracts."