128 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com And a member of a California-certified plaintiff class need not worry about potential liability for costs in deciding whether to opt out of the class: absent class members cannot be held liable for the defendant’s costs if the defendant wins the lawsuit.518 5.16.4 Deficient jury instructions often wrongly favor plaintiffs The California Judicial Council has commissioned standard jury instructions, such as the California Civil Jury Instructions (CACI), that have misstated the law to the plaintiff’s advantage. Courts have corrected some of these mistakes, by rejecting a standard jury instruction that permitted retaliation plaintiffs to prevail simply because their protesting activity was a motivating reason for their discipline, even in the absence of retaliatory intent,519 rejecting a standard jury instruction that permitted discrimination plaintiffs to prevail where, notwithstanding the presence of some discriminatory motive, the plaintiff would have experienced the same adverse employment action even in the absence of discrimination,520 and holding that a trial court erred in refusing to give a “business judgment” jury instruction that the defendant had submitted. The defendant had proposed a nonstandard instruction, which read: “You may not find that Lucasfilm discriminated or retaliated … based upon a belief that Lucasfilm made a wrong or unfair decision. Likewise, you cannot find liability for discrimination or retaliation if you find that Lucasfilm made an error in business judgment. Instead, Lucasfilm can only be liable … if the decisions made were motivated by discrimination or retaliation related to [the plaintiff] being pregnant.”521 5.16.5 Precluding discriminatory criteria in calculating lost earnings A peculiar 2019 law, though not specifically an employment law, reflects California’s progressive attitude toward tort damages. The law provides that, in personal injury and wrongful death cases, the plaintiff’s damages for lost or impaired earning capacity cannot be reduced from any calculation based on a person’s race, ethnicity, or gender.522 The new law aims, obviously, to narrow the consequences of observed differences in the pay of groups defined by gender or ethnicity.523 5.17 Special Protections for Unauthorized Workers 5.17.1 Plaintiff protections In America generally, the unauthorized work status of a plaintiff can limit their litigation remedies. The U.S. Supreme Court has held that undocumented workers cannot recover back pay for a wrongful termination, because awarding back pay would conflict with federal immigration policy.524 In California it is different. California legislation—codified in the Labor Code, the Civil Code, and the Government Code—makes the immigration status of a plaintiff irrelevant to any liability and to the remedies available under California law, except to the extent that federal law prohibits a reinstatement remedy.525 Moreover, in a proceeding to enforce California law, it is unlawful even to inquire into a person’s immigration status, absent clear and convincing evidence that the inquiry is necessary to comply with federal law.526 Employers have argued that the federal Immigration Reform and Control Act (IRCA) preempts this California legislation, but California courts have held otherwise. A trial court held that IRCA preempted the claims of undocumented workers suing for unpaid wages under California’s prevailing-wage law because the plaintiffs, under federal law, could not work lawfully in the United States. But the Court of Appeal reversed, concluding “there is no actual conflict between the IRCA and the prevailing-wage law as the state law is not an obstacle to
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