©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 15 Workplace Violence Restraining Orders: Harassment. Starting January 1, 2025, employers may seek restraining orders on behalf of their employees who have been harassed, or suffered unlawful violence or a credible threat of violence in the workplace, or where there is “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” Workplace Restraining Orders and Violence Prevention Plan. Nearly all employers in the State of California must prepare a Workplace Violence Prevention Plan, train employees on how to identify and avoid workplace violence, and maintain a violent incident log. These requirements went into effect on July 1, 2024. Cannabis Use. California employers are now prohibited from discriminating against a candidate or employee because of the person’s use of cannabis off the job and away from the workplace. It is also unlawful to request information from an applicant relating to the applicant’s prior use of cannabis, with certain exceptions. Judicial Developments Here are highlights from decisions rendered in 2023 and early 2024 by courts applying California law. Most Judicial Developments Create More Challenges for Employers During 2023 and 2024, California courts continued the general trend of expanding employer liability to employees. Arbitration agreement enforceability is read together with other agreements. Arbitration agreements may be unenforceable due to other agreements signed during the onboarding process. Other agreements signed on the same day and as part of the same process as the arbitration agreement may be read together in determining unconscionability of the arbitration agreement. (See § 5.2.4.) Organizations have standing under the UCL. Organizations (e.g., trade organizations) have standing to pursue UCL claims if they incur costs in responding to perceived unfair competition that threaten their bona fide, preexisting missions (Court of Appeal). (See § 5.13.2.) Later-filed PAGA action may not be barred by claim preclusion. Claim preclusion did not bar a second-filed PAGA action because the dearth of factual allegations in the PAGA notice in the prior PAGA action provided no factual basis to the LWDA, and thus failed to give LWDA an opportunity to investigate (Court of Appeal). (See § 5.15.3.) Permissive intervention may be allowed in settling overlapping PAGA claims. Trial courts should consider permissive intervention to permit an overlapping PAGA plaintiff an opportunity to participate in the settlement process (Court of Appeal). (See § 5.15.3.) Arbitration of individual PAGA claims does not destroy standing to pursue representative PAGA claims. An individual who has been compelled to arbitrate claims under PAGA has standing to maintain representative claims on behalf of other employees. Representative PAGA claims will be stayed pending arbitration of the individual’s claims, and the arbitrator’s ruling on the individual PAGA claim will impact the individual’s standing to pursue the representative PAGA claims (California Supreme Court). (See § 5.15.3.) PAGA claims cannot be dismissed on manageability grounds. Trial courts do not have inherent authority to dismiss or strike PAGA claims based on manageability grounds. Trial courts may limit the types of evidence a representative plaintiff may present, or use other tools to assure that a PAGA claim can be effectively tried, but the trial court may not dismiss PAGA claims on the basis of manageability (California Supreme Court). (See § 5.15.3.) “Undue hardship” requires showing “substantial increased costs” in religious accommodation cases. To defend against a claim of denial of religious accommodation under Title VII, an employer must
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