©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 411 21. Some Provisions Favoring California Employers To keep our overall presentation fair and balanced, this section lists a few provisions of California law that can benefit employers (even if that was not their primary intent). 21.1 Claims for Unlawful Tape Recording Because California is a two-party consent state to audio recording, corporate employers as well as individuals can sue for civil penalties when an employee surreptitiously tape-records confidential communications.1 Thus, wrongful termination plaintiffs who have secretly tape-recorded disciplinary meetings with their supervisors have found themselves facing an employer’s cross-complaint.2 In 2021, the California Supreme Court held that recording cell phone calls without consent is unlawful and may subject an employer to class action exposure.3 Therefore, it is now unlawful for anyone, party or nonparty, to record a cellular telephone conversation without the consent of all parties to the call. Because of this, employers should take steps to ensure that their representatives or automated systems clearly communicate to the other party that the call is being recorded and to ensure that such notification is non-bypassable. 21.2 Workplace Harassment Orders Employers can act on behalf of their employees to obtain injunctive relief against unlawful violence or a credible threat of violence that reasonably implicates the workplace.4 One California appellate court has ruled that an employer’s unsuccessful petition for an injunction would not support a malicious prosecution suit by the employee who had been the target of the petition.5 Restraining orders against gun violence can be sought by the subject individual’s employer or by co-workers who have had substantial and regular interactions with the subject individual and who have approval of their employer. The order would prohibit the subject individual from controlling, owning, purchasing, possessing, receiving, or attempting to purchase or receive, a firearm or ammunition upon a showing that there is a substantial likelihood that these activities would pose a significant danger of self-harm or harm to another in the near future and that the order is necessary to prevent personal injury to the subject or another.6 21.3 Anti-SLAPP Motions California’s “anti-SLAPP” statute permits defendants to move to strike meritless claims that are based upon the defendant’s exercise of constitutional rights.7 While this statute aims to protect public interest groups sued for defamation by corporate developers and other organizations, corporate employers have used this statute when sued for statements made to the government, such as the employers’ position statements to the EDD or the EEOC or the tax forms that the employers have filed with the IRS. During 2019 a series of judicial decisions recognized employers’ ability to use anti-SLAPP motions to strike employment suits brought against employer actions taken in furtherance of free speech rights. The California Supreme Court rejected a plaintiff’s extreme view that anti-SLAPP motions are unavailable to a defendant accused of discriminatory or retaliatory motive. The Supreme Court held that a media company, Cable News Network (CNN), could file an anti-SLAPP motion against a wrongful-termination plaintiff whom CNN had fired as a
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