©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 107 interpretation of the CBA.279 The Ninth Circuit has held that even where applying the CBA terms might affect the outcome, no preemption applies if one need only “look at” the terms of the CBA.280 Limited effect of RLA preemption. See § 7.7.8. Limited effect of NLRA preemption. Under NLRA preemption, as the U.S. Supreme Court explained in San Diego Unions v. Garmon, the NLRB has exclusive jurisdiction over disputes involving unfair labor practices, requiring state jurisdiction to yield when “state action would regulate conduct governed by the NLRA.”281 Because the NLRB decides whether the NLRA governs conduct, NLRA preemption may extend beyond conduct that the NLRA directly governs to activities that “arguably” constitute unfair labor practices. In a 2020 case, the Court of Appeal rejected an employer’s NLRA preemption defense to employee claims that the employer’s confidentiality policies unlawfully prevented employees from sharing information about wages, working conditions, and corporate wrongdoing, and from engaging in competition.282 The trial court invoked NLRA preemption to dismiss the lawsuit, but the Court of Appeal reversed, holding that the plaintiffs’ claims fell within the “local interest” exception to NLRA preemption.283 That exception applies if (1) there is “a significant state interest” in protecting the citizen from the challenged conduct, and (2) the exercise of state jurisdiction entails little risk of interference with the NLRB’s regulatory jurisdiction.284 Both conditions appeared here, the Court of Appeal thought, where the plaintiffs cite state statutes on traditional matters of local concern, which reasonably seem peripheral to the NLRA.285 States may set minimum employment standards without running afoul of the NLRA, and state violations alleged by the plaintiffs could be proven without considering whether the employer committed unfair labor practices.286 5.7.8 Limits on defensive cross-complaints One weapon in an employment defendant’s arsenal is a cross-complaint filed against the plaintiff for the plaintiff’s own actionable conduct. California limits the effectiveness of such a cross-complaint, however, by authorizing a specialized motion—an “anti-SLAPP” motion—which permits a plaintiff to argue that a cross-complaint should be stricken on the ground that it is simply a litigation tactic.287 When a female employee sued both her employer and her co-worker for sexual harassment, the co-worker defendant cross-complained against her for defamation and intentional infliction of emotional distress (IIED), based on her allegations to the police, a nurse, and an HR manager.288 When the plaintiff then filed an anti-SLAPP motion, the trial court dismissed the cross-complaint and required the co-worker to pay the plaintiff’s attorney fees.289 The Court of Appeal affirmed, because the anti-SLAPP statute protected the plaintiff’s allegations in that they were made in connection with matters under review by an official proceeding or body, and because the coworker could not demonstrate a likelihood that he would prevail on the merits of his defamation and IIED claims.290 5.7.9 Restricting peremptory juror challenges Trial lawyers often use their judgment to exercise a peremptory challenge to excuse a prospective juror who seems unfair or incompetent, even though the lawyer cannot prove that the prospective juror is actually unqualified to serve on the jury. The lawyer need not state the basis for the challenge, unless the other side objects. The peremptory challenge then stands so long as the lawyer was not discriminating on the basis of the prospective juror’s membership in some protected group. California will be making peremptory jury challenges much more difficult, if not impossible, by creating very heavy presumptions of unlawfulness with respect to some common reasons for exercising a peremptory strike. Legislation passed in 2020 will, effective in 2026, hinder civil trial lawyers who rely on various potential indicia of a prospective juror’s bias, including the prospective juror’s (1) expressing a distrust of or having a negative experience with law enforcement or the criminal legal system, (2) expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner, (3) having
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