Fired Worker Who Didn’t Disclose Dismissed Criminal Conviction Gets Trial

By Joanne Deschenaux October 30, 2020
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California law prohibits employers from asking job applicants to disclose any conviction that has been judicially dismissed or using any record of a dismissed conviction as a reason to fire an employee.

The California appellate court recently ruled that an employee who did not disclose on her job application a dismissed conviction for misdemeanor grand theft and was subsequently fired when the employer learned of the conviction could proceed with her lawsuit, even though the employer didn't know the conviction had been dismissed.

Background

The employer is an automobile dealer regulated and licensed by the California Department of Motor Vehicles (DMV). Its job application asked if the applicant had ever pleaded guilty or no contest to, or been convicted of, a misdemeanor or felony. The application further instructed that the question should be answered in the negative as to "any conviction for which probation has been successfully completed and the case has been dismissed."

The employee had pleaded no contest to misdemeanor grand theft for embezzling $2,600 from her former employer. She paid restitution, completed 15 days of community service and served three years of probation. After successfully completing probation, the employee filed a motion under the California Penal Code to have her conviction dismissed. The court granted her motion and dismissed her conviction.

The employee, therefore, truthfully answered "no" to the question regarding convictions on the job application. A background check indicated that the employee had not sustained any felony or misdemeanor convictions in the seven years prior to her application.

Four weeks after the employee began work, the DMV notified the employer that the employee had a criminal conviction but failed to tell the employer that the conviction had been dismissed. Rather than investigate the discrepancy between that notification and the background report completed when the employee was hired, the employer fired the employee for "falsification of job application," even after she explained to her superiors that her conviction had been dismissed by court order. Although the DMV issued a corrected notice three weeks later, the employer did not rehire the employee.

The employee filed a complaint with the California Labor Commissioner's Office, which determined that the employee had been unlawfully discharged and ordered her reinstatement with back pay.

The employer's administrative appeal of the decision was denied. When the employer did not comply with the orders, the commissioner filed an enforcement action on the employee's behalf. Following the commissioner's presentation of evidence at trial, the trial court granted the employer's motion for a dismissal before the case was sent to the jury, finding an absence of any evidence that the employer was aware at the time it terminated the employee that her conviction had been judicially dismissed. The commissioner appealed.

The California Labor Code

Section 98.6 of the California Labor Code prohibits an employer from retaliating against an employee because the employee exercised a right afforded him or her under the labor code. Among these protected rights is the right to refrain from disclosing a judicially dismissed criminal conviction to a prospective employer, as provided in California Code Section 432.7, the court explained.

While there was no evidence that the employee's supervisors were initially aware that the conviction flagged by the DMV was actually a dismissed conviction, the company had credible information—provided during the original background check—suggesting that the DMV information was incorrect or incomplete, the court noted.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

In addition, the employee testified that she explained to her supervisors several times at the termination meeting that her conviction had been dismissed. The company, however, took no steps to contact the DMV or otherwise investigate the discrepancy before deciding to fire the employee, the court said. Furthermore, the DMV's mistake was corrected within a matter of weeks, but the employee was not rehired.

Whether an employer has conducted an adequate investigation before dismissing an employee for an unlawful purpose is generally a question of fact for the jury, the court stressed. It was for a jury to decide whether the employer was substantially motivated by an unlawful purpose in discharging the employee, and the Section 432.7 claim should therefore have not been dismissed, the appellate court concluded.

Similarly, the plaintiff's retaliation claim should also have gone to a jury, the court added. To establish a violation of Section 98.6, the commissioner was required to show that the employee engaged in protected activity, the employer subjected her to an adverse employment action and the protected activity substantially motivated the employer's adverse employment action.

There was sufficient evidence, the court said, to establish that the employer's decision was substantially motivated by the employee's failure to disclose her dismissed conviction on her job application.

The appellate court reversed, holding the trial court should have allowed the case to proceed to a jury. The court, however, did not take a position as to whether the employee had proved her claims, saying, "While we conclude that sufficient evidence was offered at trial for the matter to be submitted to a jury, we express no opinion as to what the ultimate result should be."

Garcia-Brower v. Premier Automotive Imports, Calif. Ct. App., No. A156985 (Oct. 15, 2020).

Professional Pointer: The employer's motive in dismissing the employee was at issue in this case. Did it genuinely believe when it fired her that the employee lied on the employment application? If so, why did it refuse to rehire her once it received corrected information? These are factual, not legal, questions and so should have been presented to a jury, the court said.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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