80 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 5. Litigation Issues California stacks the litigation deck in favor of employees suing employers. Purporting to justify this one-sided treatment is the notion that employers have ample resources while suing employees do not, and that California should encourage employees to invoke the numerous statutory provisions designed to protect them from oppressive employers. Accordingly, California has made jury trials available to suing employees, while permitting courts to deny jury trials in certain wage and hour cases to defending employers (see § 5.1), often refused to enforce employer-mandated arbitration agreements (see § 5.2), refused to enforce employer-mandated venue-selection and choice-of-law agreements (see § 5.3), created a common law tort of wrongful termination in violation of public policy (see § 5.4), expanded theories of contract liability for wrongful termination (see §§ 5.5, 5.6), tilted the procedural playing field against employers seeking summary judgment (see § 5.7), broadened employer liability for defamation (see § 5.8), broadened employer liability for misrepresentation (see § 5.9), broadened employer liability to third parties for employee torts (see § 5.10), permitted full tort remedies for violations of employment discrimination statutes (see § 5.11), created one-sided rules for awarding attorney fees and costs to prevailing parties (see § 5.12), applied unfair competition laws to create a longer limitations period for employment claims (see § 5.13), and encouraged class actions against employers to pursue wage and hour claims (see § 5.14). 5.1 Special Rules for California Jury Trial 5.1.1 Employers can’t avoid jury with mandatory predispute jury waivers In many states, employers have avoided jury trials while maintaining the procedural advantages of litigating in court by agreeing with employees and applicants to have employment disputes heard by a judge sitting without a jury. This predispute selection of a bench trial avoids the risk of unpredictable, excessive jury verdicts while also retaining the right to seek judicial appellate review. In California it’s different. The California Supreme Court has held that these agreements are invalid, on the ground that waiving a jury trial requires a specific statutory authorization, such as the California Arbitration Act.1 (A concurring justice, calling California “out of step with the authority in other state and federal jurisdictions—most of which have permitted predispute jury waivers”2—urged
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