The Death of a Thousand Cuts
by Andy Caldwell
California is routinely listed as the least business-friendly state in the union and its legislature is making sure things stay that way. In addition to taxes, fees, and regulations, there is an additional factor that has driven companies out of business or out of state, and that has to do with our rating for nearly two decades as a top-judicial hellhole by the American Tort Reform Foundation.
What does that mean? It means that California business owners regularly get sued and/or shaken down by lawyers for things that are not considered illegal in most other states.
Moreover, California pioneered the practice that allowed private sector attorneys to sue businesses for violations of various regulations and get rich in the process nearly 20 years ago, whereas in every other state but one, prosecuting these type of laws falls solely under the jurisdiction of either the local district attorney or the state attorney general.
These lawsuits are called PAGA suits, which stands for California’s Private Attorney General Act (PAGA). PAGA deputizes employees of companies to enforce labor and health and safety laws and regulations on behalf of the state with huge penalties that go to the attorneys prosecuting these cases.
The Fair Chance Act
Overall, things are about to get much worse for employers in this state. The legislature passed a series of new laws that are going to create so many gray areas that more lawsuits are sure to abound. For instance, consider California’s Fair Chance Act, which prohibits an employer from inquiring into or considering an applicant’s conviction history until after a conditional offer of employment is made.
Furthermore, the Act requires an individualized assessment of whether the applicant’s criminal history has a direct and adverse relationship with specific job duties. Any evidence of rehabilitation or mitigating circumstances must be considered as part of the initial individualized assessment.
How in the world could an employer be capable of making such an assessment when the subject matter is so subjective, and how are they to access this confidential information? If judges and parole boards had any such assessments down to a hard science, the recidivism rate for early-release parolees would be minimal.
Smoking Dope on the Job
Next, now that California has legalized the use of cannabis, the question plaguing employers is how many people are under the influence while at work? The influence of a cannabis high can certainly affect driving skills, the operation of equipment, judgement, absenteeism, and productivity.
Assembly Bill 2188, which was signed into law, will prohibit employers from discriminating against a person in hiring, termination, any term or condition of employment, or otherwise penalizing a person based on a person’s use of cannabis off the job and away from the workplace. Yet somehow, the legislature still maintains the right of employers to maintain a drug-free workplace and “prohibit possession, use or impairment by cannabis on the job.”
Of course, the problem here is that cannabis (THC and cannabis metabolites) can stay in a person’s blood and urine for a month or more, and thereby, it can be hard to prove that being under the influence of cannabis caused impairment.
The Employer Restraining Order Requirement
Another bill, SB 428, is going to set up employers for lawsuits if they do not seek a temporary restraining order against an individual who has subjected an employee or employees to harassment. “Harassment” being defined as “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.”
The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress and must cause substantial emotional distress. So now if somebody in your workplace is “annoying,” your employer must get a restraining order against them?
Will the last employer in California please shut off the lights when he leaves the state?
All this would be hilarious (especially the working-while-high bit), except these head-in-sand legislators/comics really do seem determined to cement our exalted status as #50 out of 50 states in the hate-business rankings.
Screw these left-wing freaks. I'm moving to Montana where they elect people like this guy -
"Before Tim Sheehy was the frontrunner in Montana's 2024 Republican primary for U.S. Senate, the ex-Navy SEAL, aerial firefighter, millionaire business owner, . . ." in other words, an AMERICAN!