California is well-known as a challenging jurisdiction for employers. The American Tort Reform Association ranked California second on its annual list of “judicial hellholes” due to the state courts’ and legislature’s propensity to expand employer liability and avoid arbitration. According to a 2017 study, California employers face a 46% higher chance of employment litigation than the national average. Now, a recent study suggests that, in the wake of the coronavirus pandemic, employers face an additional hurdle in California: the jurors themselves.
The study compared 321 individuals nationwide to 95 individuals in Los Angeles County on their responses to a series of employment litigation questions, both before and after the pandemic. The L.A. County residents’ responses were not only more favorable to employees than the national respondents’ responses, but also more favorable to their own responses from before the pandemic. For example, when asked whom they would believe in a dispute between an employee and an employer, 66% of LA County residents had favored the employee before the pandemic. After the coronavirus pandemic, that number increased to 80% of residents, compared to only 69% of national residents.
L.A. County residents were also more likely to believe that disadvantaged groups were being harder hit by pandemic-related staffing cuts (53% of L.A. County residents vs. 35% nationally) and that discrimination on the basis of race, gender and age had worsened due to the pandemic (61% of L.A. County residents vs. 36% nationally). While both national respondents and L.A. County residents favored holding employers accountable if an employee contracts coronavirus while working, L.A. County residents held this belief more strongly, with 33% stating they strongly agreed compared to 20% nationally.
The study also found that coronavirus concerns and beliefs influenced the employment attitudes of the L.A. County residents. Residents who were concerned or very concerned about contracting the coronavirus expressed more pro-plaintiff attitudes than those who were less concerned with contracting the virus. For example, concerned L.A. County residents were more likely to agree with statements such as, “Corporations are using the coronavirus pandemic as an excuse to lay people off when they don’t really have to,” “Corporations are using the coronavirus pandemic as an excuse to overwork and underpay their employees,” and “Too many corporations have put profits over safety during the coronavirus pandemic.”
The study authors also pointed out that the results were not “completely bleak” for employers. Both nationally and in L.A. County, the majority of respondents agreed that most employers had done the best they could in a bad situation and that most corporations had tried to act in a socially responsible way during the coronavirus pandemic.
This latest research provides further support for the idea that California is a unique landscape for employers. That L.A. County residents were receptive to the idea that employers were doing their best emphasizes the importance of having an understandable narrative to explain adverse employment actions. However, even armed with a reasonable version of events, employers should be prepared to face increased hostility in California litigation. It also remains to be seen how the events of the coronavirus pandemic will affect juror attitudes nationwide, and additional care is likely required when litigating employment issues related to the pandemic.