The New Normal, according to Gov. Gavin Newsom, will look quite different for restaurants, and stores with gloved and masked attendants, throw away menus, spacing protocols and health checks at the door. How will the rules be enforced? A concern for the business community is that officials might turn to private litigation in a way that has bedeviled many businesses recently.
To enforce a telephone book-sized collection of labor codes, the legislature opened the door for private attorneys to bring actions on behalf of workers. These Private Attorney General Act lawsuits for minor or unintended errors often cost businesses dearly when not given a proper chance to correct an error. If a similar model is pursued to enforce coronavirus mandates, businesses would face new jeopardy. Attorneys could have a field day filing class action lawsuits for customers of shops or restaurants.
So far, following the rules set down by different government agencies to slow the spread of COVID-19 have been largely voluntary. But not everyone has cooperated, and authorities intervened legally in some instances.
In Los Angeles, for example, the city attorney has investigated nearly 80 cases of criminal violations of the mayor’s coronavirus orders and has filed criminal charges against 10 businesses considered non-essential that remained open including a car wash, a print shop and a massage parlor.
Even if stay-at-home orders are lifted and are replaced with regulations to enforce the virus spreading rules, businesses attempting to survive and individuals tired of the lockdown guidelines could edge across the regulatory lines.
What if minor and even unintended violations occur such as a restaurant puts a table slightly closer to a neighboring table that the official standards call for? That’s where danger could lurk for unsuspecting businesses. If legislation or executive orders allow for a PAGA-type response and a business misses a mark, they would be open to lawsuits.
It’s not a far-fetched idea. The PAGA approach has tormented businesses. That would only intensify if non-government attorneys are allowed to bring class-action enforcement cases. In an environment where many businesses are living on the edge of survival, such actions could be immensely destructive.
And, it could be another program that lasts. As Susan Shelley conjectured in her Orange County Register column: “Long after COVID-19 is gone, we’ll still be living with the threat of fines and lawsuits for placing strips of tape on the floor that are six feet apart when the regulations say six feet two inches.”
So, when the governor, boards of supervisors, mayors and legislative bodies consider setting standards as businesses slowly open, they must be careful not to create a climate for additional legal burdens on businesses that are struggling to survive.