16 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Aggrieved employees cannot appeal PAGA settlements. Because every PAGA action is a representative action, rather than an individual one, an aggrieved employee who was not a party to the lawsuit giving rise to a PAGA settlement cannot appeal from court approval of that settlement. (See § 5.15.3.) Expense reimbursement requests must be reasonable. Where an employee could have used company provided phones, data plans, or internet access, the employee’s choice to use a personal phone, data plan, or internet access service may have been unreasonable, and therefore a motion to strike a claim for unreimbursed expenses was granted. (See § 7.13.1.) Class certification unwarranted where employer reimbursed employees for incremental expenses. A district court denied class certification where an employer reimbursed employees for the costs they incurred in excess of their ordinary home internet costs, concluding, in part, that the employees had received more than a “reasonable percentage” of their home internet costs. (See § 7.13.1.) Employer may enforce customer non-solicitation agreement following sale of business. The general sale of business exception to the prohibition on non-solicitation agreements applies when an individual disposes of all, or substantially all, of his interests in a business. (See § 12.1.5.) Prop 22 is not unconstitutional. A California Court of Appeal held that Prop 22’s unconstitutional provisions were severable, and that the remainder of the law remains enforceable. (See § 19.7.) Issues Pending Review in 2023 Before the California Supreme Court This volume reports on California Supreme Court decisions through about June 2023. We expect the Supreme Court to issue several further decisions affecting private employment during 2023: Can an individual continue to represent allegedly aggrieved employees in a PAGA matter after that individual’s claims have been compelled to arbitration? In Adolph v. Uber Technologies, Inc., nonpublished opinion, G059860, G060198 (2022), review granted No. S274671 (Cal. July 20, 2022), The Supreme Court agreed to decide: “Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ in court or in any other forum the parties agree is suitable? (Case argued and submitted on May 9, 2023.) Can a coworker’s use of a single egregious racial epithet create a hostile work environment? In Bailey v. San Francisco District Attorney’s Office, nonpublished opinion, A153520 (2020), review granted, No. S265223 (Cal. Oct. 26, 2020), the Supreme Court agreed to decide: “Can a plaintiff’s coworker’s use of a single egregious racial epithet support a discrimination claim based on a hostile work environment?” (Case fully briefed as of September 3, 2021.) (See § 6.1.) Can employers use neutral time-rounding for payroll purposes? In Camp v. Home Depot U.S.A., Inc., 84 Cal. App. 5th 638 (2022), review granted No. S277518 (Cal. Feb. 1, 2023), the Supreme Court agreed to decide: “Under California law, are employers permitted to use neutral time-rounding practices to calculate employees work time for payroll purposes?” (Opening brief filed June 1, 2023.) (See § 7.4.4.) Can trial courts strike PAGA claims when not manageable at trial? In Estrada v. Royalty Carpet Mills, Inc., 76 Cal. App. 5th 685 (2022), review granted No. S274340 (Cal. June 22, 2022), the Supreme Court agreed to decide: “Do trial courts have inherent authority to ensure that claims under the Private
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