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Mediation is all about finding common ground. As I discussed in my prior article, Mediation in Litigation: Five Key Tips for Success, employers can approach mediation far more effectively when they understand not only what mediation is, but also the tools that may be used during the process. One of the most common — and often misunderstood — tools is called bracketing. This week’s Friday’s Five covers what bracketing is, why it’s used, and five key points for negotiating effectively with it.

1. What Bracketing Is (and Why It Matters)

Bracketing is when one party proposes a range of settlement numbers rather than a single offer.

Example: Instead of saying:

“We’ll offer $75,000,”

A party might say:

“We’ll move to a bracket of $50,000 to $150,000.”

The range itself is important, but often the midpoint is what the other side focuses on. For example, if you propose a bracket of $100,000–$200,000, the midpoint ($150,000) might be interpreted as the settlement zone you are signaling—whether you mean to send that message or not.

Bracketing can change the tone of the negotiation. Instead of fighting over whether the next offer should be $90,000 or $95,000, a bracket reframes the discussion to “are we negotiating in this general range?” That shift can open the door to resolution.

2. Why Mediators Use Bracketing

Mediators often suggest bracketing when the parties are far apart and traditional back-and-forth offers aren’t making progress. Common reasons include:

• Signaling flexibility without commitment: Bracketing lets a party suggest a broader settlement zone without moving all the way to a specific number.
• Resetting unrealistic expectations: If one side is anchored to an extreme number, a bracket can re-center the conversation toward a more reasonable range.
• Testing the waters: Sometimes a mediator uses brackets to see if there’s overlap between what the parties might accept without forcing either side to commit yet.

By shifting from fixed offers to a flexible range, mediators can reduce tension and focus the discussion on zones of potential agreement rather than positional bargaining.

3. Strategies for Using Bracketing Effectively

If you decide to bracket, you need a plan. Here are some ways to use it to your advantage:

• Control the midpoint narrative: Even though mediators sometimes say “don’t read too much into the midpoint,” experienced negotiators know that’s often exactly what the other side will do. Offer ranges that have a midpoint you can live with.
  • Example: If you want to settle around $125,000, offering a bracket of $100,000–$150,000 can steer discussions toward that zone.
• Use bracketing to reset expectations: If negotiations are stuck in small moves, proposing a range can disrupt the “inch-by-inch” stalemate and invite more meaningful movement.
• Make it conditional: To avoid giving away too much, you can make your bracket contingent on the other side offering their own bracket.
  • Example: “We’ll bracket at $80,000–$120,000 if you’ll come in at $100,000–$140,000.”
• Communicate clearly with the mediator: Make sure they understand whether your bracket is a firm settlement zone or simply a testing range. Without clear communication, the mediator may present your bracket with more flexibility—or more rigidity—than you intend.

4. What to Watch Out For

While bracketing can be useful, it carries risks if not handled carefully:

• Revealing your bottom line: If your bracket’s midpoint is close to your true walk-away number, you may tip your hand too early.
• Perception of weakness: Offering a range that makes large concessions can signal desperation and invite the other side to push for even more.
• Misinterpretation: Without clear framing, your bracket could be taken as your actual settlement zone, even if it was meant as a discussion tool.

Think ahead: if the midpoint becomes the focal point, are you prepared to defend or move from it?

5. When to Decline to Bracket

You’re never required to use bracketing just because a mediator suggests it. Situations where you might decline include:

1. You’re near your last, best, and final offer. Bracketing could pressure you into revealing a range you’re not comfortable with.
2. The facts or liability issues are still unsettled. If there’s a major dispute over legal or factual issues, negotiating numbers through a bracket may be premature.
3. The other side is fishing for your number. If they won’t reciprocate with their own bracket, you may be giving away strategic information for free.
4. The midpoint doesn’t work for you. If the mediator is pushing a midpoint that’s outside your acceptable range, it’s okay to walk away from the bracket discussion.

Final Thought

Bracketing can be a powerful settlement tool when it’s used strategically. The key is preparation:

• Know your real settlement range before you start.
• Work closely with your attorney to frame brackets that advance your position.
• Understand that the midpoint will often be interpreted as your target—so choose carefully.

And remember: just because bracketing is offered doesn’t mean you have to use it. Only bracket when it serves your negotiation goals.

The post Understanding Bracketing in Mediation appeared first on California Employment Law Report.

A major strike is underway at Boeing plants in the Midwest. NBC News reports: “Several thousand workers at three Midwest manufacturing plants where Boeing develops military aircraft and weapons went on strike early Monday, potentially complicating the aerospace company’s progress in regaining its financial footing. The strike started at Boeing facilities in St. Louis; St. Charles, Missouri;…

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Some California cities have raised their local minimum wage above the state rate of $16.50. In this episode of California Employment News, Weintraub Tobin attorneys Nikki Mahmoudi and Chris Horsley cover key updates in cities like San Francisco, Berkeley, Emeryville, and Alameda.

Watch this episode on the Weintraub YouTube channel.

Show Notes:

Nikki: Hi, everyone. Thank you for joining us for this installment of the California Employment News, an informative video and podcast resource offered by the Labor Employment Group here at Weintraub Tobin. My name is Nikki Mahmoudi, and I’m an associate in the Firm’s Labor and Employment Group. And today, I’m joined by my colleague, Chris Horsley.

Today, we’re going to be providing a quick minimum wage update at the local level. So, we’re midway through the year a little bit more than that. And so at this point, California has not updated their minimum wage for 2026. We’re just providing an update on some local jurisdictions that have.

So, starting July first, 2025, some local jurisdictions in California have increased their minimum wage beyond the state’s required rate of $16. 50. Now, note, when a jurisdiction has a minimum wage and it’s higher than the state minimum wage, we want to go with that number. Another consideration to keep in mind is that there’s also specific minimum wage rates for certain workers. That includes certain fast food workers and certain health care workers. We’ve actually previously done CENs about those minimum wage increases, and we’ll make sure to leave those CN links for you in the description box.

Keeping that in mind, Chris, can you give me an idea of some of the general minimum wage increases we’ve seen at the local level?

Chris: Of course. I can give you a few examples in Northern California. As of July first, 2025, both San Francisco and Berkeley have increased their minimum wage to $19.18 per hour. Then in Emreville, we have among the highest minimum wage in the state of California with a minimum wage of around $19.90 per hour. Finally, we have Alameda, who has recently increased their minimum wage from $17 to $17.46 per hour. Remember, if any of these numbers are higher than the state minimum wage, we want to go with that number instead. That’s it for now.

You can continue to find our video series through thelelawblog.com or on the Weintraub Tobin YouTube channel.

Thank you everyone for joining us, and we look forward to reconnecting with you in the next edition of California Employment News.

https://www.youtube.com/channel/UC5gFpnC9zJpQvoOIoYMBZsw

Casino workers and their unions have achieved a monumental victory. The Associated Press reports: “When Susana Pacheco accepted a housekeeping job 16 years ago at a casino on the Las Vegas Strip, she believed it was a step toward stability for her and her 2-year-old daughter. But the single mom found herself exhausted, falling behind…

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Don’t Just Get Mad, Get Even: Why Unfair Competition Demands a United Front

You follow the rules. You pay your premiums, file your paperwork, and play fair. You invest in your team, carry the proper licenses, and ensure your business is covered with workers’ compensation insurance. So why does it feel like you’re being punished for it? Every time you submit a bid, you know you’re not just competing on skill and efficiency; you’re up against ghost competitors who operate in the shadows, and it’s costing you jobs. You’re not imagining it, and you’re not alone in your frustration.

The Unlevel Playing Field

When a competitor submits a bid that seems impossibly low, it’s not because they have a secret business method. It’s because they’re cheating. They build their business model on breaking the law, and every legitimate contractor pays the price.

Let’s break down the “advantage” an illegal operator has. While you are paying for the essential costs of doing business legally, they are simply pocketing the difference. These costs include:

• Workers’ Compensation Insurance: Depending on the trade, this can add a significant percentage to your payroll costs. It’s a non-negotiable expense that protects your workers and your business, yet your illegal competitor treats it as optional.
• Payroll Taxes: You pay your share of Social Security, Medicare, and state and federal unemployment taxes for every employee. By paying “cash under the table,” an illegal operator avoids this entirely, instantly giving them a massive price advantage.
• Licensing and Bonds: You’ve invested the time and money to get licensed by the CSLB and carry the necessary bonds, proving your professionalism and providing a layer of consumer protection. They operate with none of these safeguards.
• Liability Insurance: You carry liability insurance to protect your clients and your assets. It’s a fundamental part of responsible business ownership that they simply ignore.

When you add it all up, an illegal competitor can have 20% to 40% lower overhead before the job even starts. They aren’t more efficient; they’re just operating illegally. This isn’t fair competition. It’s theft—theft from their workers, from the government, and directly from your bottom line.

A Powerful, Overlooked Tool

For too long, honest contractors have felt helpless, believing that reporting these operators to overwhelmed state agencies is their only recourse. But there is a powerful and direct tool designed for this exact situation: California’s Unfair Competition Law (UCL).

Found in the Business and Professions Code § 17200, the UCL is a broad statute that prohibits any “unlawful, unfair or fraudulent business act or practice.” The key word here is unlawful. When a competitor operates without a required license or fails to carry legally mandated workers’ compensation insurance, they are, by definition, committing an unlawful business act.

The UCL allows businesses that have been harmed and have lost money as a result of this illegal competition to take direct legal action. It’s not just about consumer rights; it’s about business rights. It gives you the standing to sue a competitor whose illegal shortcuts are directly taking business away from you. Think of it as a rule that says you can’t win a race by taking a shortcut that’s off-limits to every other runner. The UCL is the referee that can penalize them for it.

The Power of Alliance

So, if this powerful tool exists, why isn’t every honest contractor using it? The answer is simple: fighting alone is daunting, expensive, and time-consuming. Hiring attorneys and building a legal case against a single competitor can cost tens of thousands of dollars with no guarantee of success. For a small business, it’s a risk that’s often too great to take on.

This is precisely why the Workers’ Rights Compliance Alliance was formed.

We are a non-profit association founded on a simple principle: there is strength in numbers. Instead of one small business trying to fight a systemic problem alone, the Alliance pools resources from its members to create a dedicated legal fund. We work with legal experts to identify clear-cut cases of unfair competition and take targeted legal action on behalf of all our members.

By joining forces, we transform an impossible individual fight into a manageable and powerful collective action. Your modest membership fee combines with others to create a war chest that illegal operators cannot ignore. We handle the legal legwork, reducing your individual risk and allowing you to focus on what you do best—running your business.

Stop Feeling Helpless. Start Fighting Back.

The frustration you feel every time you lose a bid to an illegal operator is justified. But frustration alone won’t change anything. The cycle of unfair competition will continue as long as honest contractors feel isolated and powerless. It’s time to change the dynamic.

You don’t have to accept this as the cost of doing business anymore. You have the law on your side, and now, you have an alliance ready to fight with you. It’s time to level the playing field.

Visit https://workersrightscompliancealliance.com/ to learn how to join the fight. Don’t just get mad. Get even.

Union-busting by Trump got a nod of all approval from a federal appellate court. The New York Times reports: “A federal appeals court on Friday allowed President Trump to move forward with an order instructing a broad swath of government agencies to end collective bargaining with federal unions. The ruling authorizes a component of Mr. Trump’s…

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An SEIU member who was at the site of the recent NYC mass shooting recounts that harrowing day. The New York Times reports: “On Monday evening, Sebije Nelovic was dusting a table on the 33rd floor of the Park Avenue office building she had been cleaning for close to three decades when she heard startling…

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School is back in session for millions of students this month. Let’s teach them by example that shopping union-made is a great way to support good jobs. Use our list below to make your back-to-school shopping a little easier. Happy shopping from all of us at Labor 411 Folders, Notebooks, and More ACCO brands (CWA)…

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In a July 2025 decision, the California Court of Appeal for the Fifth Appellate District ruled that so-called “headless PAGA” lawsuits are allowed—actions in which a plaintiff drops their own Labor Code claims but continues to pursue penalties on behalf of other employees under the Private Attorneys General Act (PAGA). This holding, in CRST Expedited v. Superior Court, intensifies an existing split among California appellate courts and sets up a definitive ruling by the California Supreme Court in Leeper v. Shipt, Inc.

Here are five things California employers should know about this growing legal divide and its implications:

1. What Is a “Headless” PAGA Case?

A “headless PAGA” case refers to a situation where a PAGA plaintiff disclaims or dismisses their individual claims—typically to avoid arbitration pursuant to an agreement to arbitrate all employment issues—and instead continues only with representative claims on behalf of other allegedly aggrieved employees. These plaintiffs argue that they may proceed solely as proxies for the State of California to enforce the Labor Code, even if they no longer pursue any relief for themselves.

This procedural strategy aims to bypass arbitration agreements that contain a class action waiver and require the plaintiff to arbitrate their individual claims prior to being a representative in a PAGA case.  These arbitration agreements have been upheld by the US Supreme Court in Viking River Cruises v. Moriana. 

2. CRST Expedited v. Superior Court: The Fifth District Approves Headless PAGA Claims

In CRST Expedited, the plaintiff initially asserted both individual and representative PAGA claims. After the court compelled the individual portion to arbitration, the plaintiff voluntarily dismissed those claims and proceeded in court with the representative portion alone—thus rendering the case “headless.”

The employer argued this stripped the plaintiff of standing. The appellate court disagreed, finding that the statutory phrase allowing an aggrieved employee to bring a civil action “on behalf of himself or herself and other employees” was ambiguous. The court reasoned that the word “may” is permissive, and to promote PAGA’s core purpose of Labor Code enforcement, the word “and” could reasonably be read as “and/or.”

In short: the Fifth District held that plaintiffs may bring representative PAGA claims even after discarding their own, at least under the version of PAGA in effect before the July 1, 2024 amendments.

3. Leeper v. Shipt, Inc.: The Second District Says “No” to Headless PAGA

In a prior case, the Second District Court of Appeal reached the opposite conclusion in Leeper v. Shipt, Inc., holding that every PAGA action inherently includes both individual and non-individual claims. According to Leeper, a plaintiff cannot surgically remove their own claim to avoid arbitration and still retain standing to prosecute claims on behalf of others.

The court emphasized that under the ordinary reading of the statute, the phrase “on behalf of himself or herself and other employees” requires inclusion of both types of claims. It argued that allowing purely representative (headless) actions rewrites the statute and undermines legislative intent.

4. The California Supreme Court Will Decide: Leeper Now Under Review

On April 16, 2025, the California Supreme Court granted review in Leeper, even though neither party petitioned for it. This rare move reflects the urgency and importance of resolving this issue, which is also been addressed in Williams v. Alacrity Solutions Group, which is also under review pending Leeper.

The Court has asked the parties to address two key questions:

1. Does every PAGA action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint expressly alleges them?
2. Can a plaintiff choose to bring only a non-individual PAGA action?

Employers across California should closely watch for this decision, which could significantly reshape how PAGA claims are structured and litigated.

5. Key Takeaways and Employer Action Items

While the legal landscape remains uncertain, California employers should:

• Review arbitration agreements carefully. Language and structure still matter—and may determine how courts handle bifurcated claims.
• Proactively audit wage-and-hour practices. The best defense to PAGA claims remains full compliance and routine audits and training to potentially cap PAGA penalties at 15%. Learn more about how employers can reduce their liability by routine audits in our prior article here.
• Track the Leeper and CRST developments closely.
• Consider the cost of delay and dual-forum litigation.
• Consult experienced employment counsel to tailor strategies to this shifting environment.

Final Thoughts

The CRST Expedited ruling and the issue of headless PAGA cases will impact California’s PAGA landscape. With the California Supreme Court set to resolve the issue in Leeper, now is the time for employers to audit their arbitration agreements, examine potential PAGA exposure, and stay informed.

Need help reviewing your policies or responding to a PAGA notice? Our team is actively helping clients defend PAGA claims as well as advising on proactive steps to mitigate PAGA exposure. 

The post “Headless” PAGA Actions Get Green Light in CRST Expedited—But the California Supreme Court Is Poised to Step In appeared first on California Employment Law Report.