EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE – In General

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A facial challenge to a rule is based solely on the text of the rule. “There are at least two possible standards for evaluating a facial challenge. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126.) Under the stricter standard, we should reject a facial challenge to a rule unless it totally and fatally conflicts with the MMBA. (Ibid.) Courts often follow a more lenient standard, however, wherein a facial challenge to a rule can be sustained if it conflicts with the MMBA “in the generality or great majority of cases.” (Ibid.) Under either test, a party alleging a facial violation cannot prevail merely by suggesting that the challenged rule may run afoul of the law in “some future hypothetical situation.” (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 264.) (pp. 27-28.)