Cal-Peculiarities: How California Employment Law is Different 2022 Edition

18 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com Issues Pending Review in 2022 Before the Supreme Court This volume reports on California Supreme Court decisions through about May 2022. We expect the Supreme Court to issue several further decisions affecting private employment during 2022:  Can employees sue the client employer after settling with the employer’s staffing agency? In Grande v. Eisenhower Medical Center , 44 Cal. App. 5th 1147 (2020), rev. granted , No. S261247 (Cal. March 16, 2020), the Supreme Court agreed to decide: “May a class of workers bring a wage and hour class action against a staffing agency, settle that lawsuit with a stipulated judgment that releases all of the staffing agency’s agents, and then bring a second class action premised on the same alleged wage and hour violations against the staffing agency’s client?” (Case argued and submitted on April 5, 2022.) (See § 7.21.)  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), rev. 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.)  Are employees protected from retaliation for disclosing unlawful activity that is already known to the recipient? In People ex rel. Garcia-Brower v. Kolla’s Inc. , nonpublished opinion, G057831 (2021), rev. granted , No. S269456 (Cal. June 21, 2021), the Supreme Court agreed to decide: “Does Labor Code section 1102.5, subdivision (b), which protects an employee from retaliation for disclosing unlawful activity, apply when the information is already known to that person or agency?” (Reply brief due on June 14, 2022.) (See § 3.5.1.)  Does FEHA permit a business entity acting as an employer’s agent to be held liable for employment discrimination? In Raines v. U.S. Healthworks Medical Group, rev. granted , No. S273630 (Cal. March 16, 2022), the Supreme Court agreed to decide an issue referred to it by the Ninth Circuit: “Does California’s Fair Employment and Housing Act, which defines ‘employer’ to include ‘any person acting as an agent of an employer’ (Gov. Code, § 12926, subd. (d)), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?” (See § 6.1.)  Do PAGA plaintiffs have the right to intervene in related actions? In Turrieta v. Lyft, Inc. , 69 Cal.App.5th 955 (2021), rev. granted , No. S271721 (Cal. Nov. 10, 2021), the Supreme Court agreed to decide: “Does a plaintiff in a representative action filed under the Private Attorneys General Act (Lab. Code, § 2698, et seq.) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the state?” (Reply brief due on June 9, 2022.) (See § 5.15.3.)