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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 97 In that instance, the party seeking to enforce the forum-selection clause has the burden to show enforcement would not diminish unwaivable California statutory rights; otherwise a forum-selection clause could be used to force a plaintiff to litigate in another forum that may not apply California law. ” 147 The Court of Appeal reversed the trial court’s stay order because the employer had “failed to show a Texas court would apply California law, and therefore the Texas-based company failed to meet its burden to show enforcing the forum selection clause would not diminish the unwaivable statutory rights on which [the plaintiff] bases her claims. ” 148 5.4 Public Policy Claims for Wrongful Employment Actions California permits employees to seek economic, non-economic, and punitive damages from employers who have fired or demoted them in violation of public policy. 5.4.1 Broad definition of public policy Admitting “public policy” is “inherently not subject to precise definition, ” 149 the California Supreme Court has sought to put some defining boundaries around it. First , the public policy must be clearly established and substantial, and stem from a constitution, a statute, or an administrative regulation. Second , the policy must be established for the benefit of the public as a whole, and not just for the individua l. 150 Third, the policy must sufficiently describe prohibited conduct to give employers adequate notice . 151 N onetheless, as seen below, these limits encompass a broad variety of lawsuits. 5.4.2 Examples of absence of public policy Can employers insist on arbitration agreements to the point of firing employees who refuse to sign? A California appellate court rejected the wrongful termination claim of an employee fired for refusing to sign an arbitration agreement. The Court of Appeal rejected the plaintiff’s argument that the employer violated public policy by requiring employees to waive the right to jury trial, because the parties could, consistent with public policy, agree to waive a jury trial as part of an arbitration agreement . 152 T his argument now has renewed vitality, however, in light of Labor Code section 432.6, effective in 2020, which forbids employers to require employees to waive any right, forum, or procedure with respect to a Labor Code or FEHA claim. An employee now fired for refusing to sign an arbitration agreement thus might sue for wrongful termination in violation of public policy. Whether the FAA would preempt such a claim is not yet determined. Employers not liable for tort actions for unlawful denial of hire? The Court of Appeal held that, absent an employment relationship, a business does not owe an individual a duty of care with respect to his hiring, and so an individual denied employment because of his race has only statutory remedies and no tort claim for an unlawful failure to hir e. 153 No general public policy favoring lawsuits. The Court of Appeal rejected the wrongful termination claim of an employee who sued a client of the employer, as no public policy (even in California) generally favors the prosecution of a lawsuit . 154 No public policy against advising high schoolers to gain weight. The Court of Appeal reversed a jury verdict of wrongful termination claim for a high school teacher fired for reporting a football coach’s advice to students to use creatine. Displaying a rare exercise of Californian judicial restraint, the Court of Appeal noted that while there may be “sound policy reasons” to bar coaches from recommending weight-gaining substances to students, “any such prohibition must be enacted explicitly by the legislature, not implicitly by the courts. ” 155