Anti-SLAPP and employment claims

California's anti-SLAPP statute "makes available a special motion to strike meritless claims early in litigation." FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1158 (Cal. 2019). But the statute applies "only if the claims arise from acts in furtherance of a person's 'right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.'" Id.

For years, Courts of Appeal disagreed over whether employment claims qualified for protection under the anti-SLAPP statute. In Wilson v. Cable News Network, Inc., 444 P.3d 706 (Cal. 2019), the California Supreme Court resolved this division, holding that the statute can apply to employment claims -- but only under certain circumstances. Since then, the Courts of Appeal have inconsistently grappled with how to apply Wilson's standard.

Wilson resolves the split over the anti-SLAPP statute's applicability to employment claims

Before Wilson, several Courts of Appeal held that employment claims fell within the anti-SLAPP statute's scope because, in those cases, the claims arose from protected speech or petitioning activities. E.g., Hunter v. CBS Broadcasting Inc., 165 Cal. Rptr. 3d 123 (Cal. Ct. App. 2013). Other Courts of Appeal, however, refused to apply the statute to employment claims. E.g., Nam v. Regents of Univ. of Cal., 205 Cal. Rptr. 3d 687 (Cal. Ct. App. 2016).

The Supreme Court took up this split of authority in Wilson. The plaintiff there wrote and produced stories for CNN. After he raised concerns about the network's alleged treatment of African-American men, the plaintiff asserted that CNN provided him with menial assignments and denied him promotions in favor of younger, less experienced white candidates.

Subsequently, an editor flagged one of the plaintiff's stories for concerns about plagiarism. Citing these concerns, CNN placed the plaintiff on a leave of absence and later fired him. The plaintiff sued, alleging claims for discrimination, retaliation and defamation.

The trial court granted CNN's anti-SLAPP motion. The Court of Appeal reversed, concluding that the anti-SLAPP statute did not apply to the employment claims. The Supreme Court affirmed in part and reversed in part.

The Supreme Court rejected the view that employment claims categorically fall outside the anti-SLAPP statute's scope, holding that "discrimination and retaliation claims arise from the adverse actions allegedly taken, notwithstanding the plaintiff's allegation that the actions were taken for an improper purpose." Wilson, 444 P.3d at 718. "If the conduct that supplies a necessary element of the claim" is protected by the statute, the employer has shown the statute applies to the employment claim, "regardless of alleged motivations that supply other elements of the claim." Id. The court disapproved Nam's conclusion to the contrary.

Applying this test, the Supreme Court decided that the plaintiff's claims fell within the anti-SLAPP statute's scope to the extent they were based on CNN's decision to terminate his employment. CNN had presented evidence to show its ability to participate meaningfully in public discourse depended on its credibility, plagiarism undermines this feature, and disciplining an employee for an alleged breach of journalistic ethics to preserve the news organization's credibility lies at the core of the press function. The staffing decision to terminate the plaintiff was therefore protected conduct in furtherance of free speech in connection with a public matter under the anti-SLAPP statute.

But the Supreme Court held that the claims fell outside the anti-SLAPP statute's reach to the extent they were based on other conduct, such as which assignments were given to the plaintiff. The court concluded that CNN failed to present evidence showing the plaintiff's work bore a sufficiently meaningful relationship to CNN's exercise of editorial control to warrant anti-SLAPP protection for staffing decisions other than CNN's termination of his employment.

California courts' inconsistent efforts to implement Wilson's standard

Although Wilson established that the anti-SLAPP statute can apply to employment claims under certain circumstances, Courts of Appeal have struggled to consistently apply Wilson.

Two decisions -- Turnbull v. Oro Grande School District, 2019 WL 6318415 (Cal. Ct. App. Nov. 26, 2019), and Carley v. Eyester, 2019 WL 6267375 (Cal. Ct. App. Nov. 18, 2019) -- are illustrative.

In Turnbull, the plaintiff had worked for a school district. After the plaintiff accessed another district's confidential student data using her own district's login information, her superintendent put the plaintiff on administrative leave pending an investigation into the matter. The plaintiff subsequently informed her employer she was unable to return to work for a time due to a disability, and was put on sick leave rather than administrative leave. While on leave, she filed a workers' compensation claim, but her employer allegedly refused to process it, purportedly forcing her to exhaust her sick leave.

When her leave expired, the employer terminated her employment and she sued for retaliation (among other claims). The trial court denied defendants' anti-SLAPP motion. The Court of Appeal affirmed.

The appellate court acknowledged that the employer's investigation was an activity protected by the anti-SLAPP statute. But the court held that the retaliation claim was not based on this protected conduct.

Applying Nam, the Turnbull court decided the retaliation claim was based on "retaliatory employment decisions that culminated in [the plaintiff's] wrongful termination": "putting her on leave without due process," "forcing her to exhaust her leave benefits," "refusing to process her workers' compensation paperwork, and wrongfully terminating her." Turnbull, 2019 WL 6318415, at *6-*8.

The court acknowledged that Wilson disapproved Nam, but maintained that Wilson did so only to the extent Nam had erroneously concluded employment claims were virtually always outside the anti-SLAPP statute's reach "so long as they sufficiently alleged that the defendant acted with an illicit motive." Id. at *6 n.5.

By contrast, Carley applied the anti-SLAPP statute to the employment claims there. The plaintiff in Carley worked as a county probation officer. Her former fiancé allegedly injured her, her daughter reported those injuries to the authorities, and the plaintiff provided her own account of the matter in the ensuing investigation by the authorities. Subsequently, the plaintiff was investigated for deceit, reprimanded, reassigned to other duties, and had her duty weapon confiscated.

The plaintiff sued for harassment, claiming (among other allegations) that the county's district attorney subjected her to a hostile working environment. The trial court granted the district attorney's anti-SLAPP motion, and the Court of Appeal affirmed.

The appellate court held that the acts underlying the harassment claim were "protected by the anti-SLAPP statute." Carley, 2019 WL 6267375, at *3. The anti-SLAPP law protects statements made in connection with an issue under consideration by an executive or judicial body. The harassment claim qualified for this protection because it was based on the district attorney's alleged insistence that the plaintiff's weapon be confiscated and the district attorney's instructions to his deputies to provide certain disclosures that allegedly disqualified the plaintiff from handling court cases.

Carley rejected the plaintiff's contention that Nam compelled a contrary conclusion. Carley explained that Nam had "always" been "at odds with other appellate decisions" applying the anti-SLAPP statute to employment claims, and stated that Wilson "put the matter to rest by expressly disapproving Nam." Id. at *5.

Although Carley and Turnbull are unpublished decisions that cannot be cited in California courts, they demonstrate that California Courts of Appeal have struggled to implement Wilson, reaching inconsistent conclusions about when employment claims qualify for anti-SLAPP protection under Wilson and disagreeing over the extent to which Wilson disapproved cases like Nam. 