concurring in part and concurring in the judgment:
I agree with parts I, II, and III of the majority opinion: plaintiffs’ claims are not preempted because the CBA did not contemplate surreptitious surveillance of bathrooms through two-way mirrors. However, the Court’s alternative holding unnecessarily interprets ambiguous California law and threatens the ability of similarly situated parties to negotiate legitimate limitations on privacy. I respectfully disagree with parts IV and V of the majority opinion.
California law clearly protects individuals from covert observation in certain traditionally private places, such as restrooms and fitting rooms. See Cal.Penal Code § 653n. Rather than merely hold that Consolidated’s covert actions here were illegal, the Court today holds that even in future contract negotiations, the parties could not reduce privacy expectations in the bathrooms of California workplaces. See Majority Op. at 695-96 (“Even if the CBA purported to reduce or limit this expectation in some way, that reduction would be illegal and therefore unenforceable.”). It is not clear to me that California courts would preclude such negotiations between well-represented parties if there were a compelling reason to permit observation. See, e.g., Hill v. NCAA, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, 655 (1994) (“[T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the, participant.”); In re Deborah C., 30 Cal.3d 125, 177 Cal.Rptr. 852, 635 P.2d 446, 452 n. 9 (1981) (“[Sjection 653n is limited to a method of hidden spying ... [not] that restrooms and fitting rooms are immune from all observation.”).
It also appears that the majority’s broad statement in its alternative holding threatens multi-state employers’ ability to fulfill federally mandated safety requirements by negotiating with their employees. In light of the ambiguity in California law and the fact that we are remanding the claims to state court because the federal courts lack jurisdiction, a more narrow holding by this Court is clearly preferable.