Consider this scenario: A California resident was driving under the influence on his own time and in his own vehicle. He was pulled over and subsequently charged with a DUI (driving under the influence). His employer responded to the charges by suspending driving privileges. When he could not get the charges dismissed, he was unable to find another position at the company that did not require him to drive a company vehicle. As a result, he was terminated from his employment. The employee was eventually convicted on the DUI charges, served 2 years of probation, and then the conviction was dismissed. The issue on appeal was applying Labor Code Section 432.7 to determine of the employer was in violation of labor law; wrongfully terminating the employee on the basis of criminal records information.
Labor Code Section 432.7:
· Prohibits California employers from asking employees to disclose information regarding an arrest or detention that did not result in a conviction.
· Prohibits California employers from basing employment or conditions of employment, job offers, promotions, etc. on a record of arrest or detention that did not result in a conviction.
In this particular scenario, the employer responded to the suit by filing a demurrer which requests a dismissal of a complaint due to it failing to state a valid cause of action. The argument presented was that the employee was convicted which precludes his Labor Code Section 432.7 violation and wrongful termination claims. The employee countered that his conviction occurred post-termination and that it was “likely” to be dismissed. He requested that the court delay proceedings in order to allow time for the resolution of his pending motion to expunge the conviction.
The trial court sustained the employer’s demurrer and dismissed the employee’s complaint. They found that the protection of Section 432.7 of the Labor Code was for situations in which the arrest/detention did not result in a conviction. Since this employee’s DUI charge did result in a conviction, the protections did not apply. They also found that the employer is not required to wait to see if an employee will successfully complete their probation and have their conviction expunged before taking adverse action in response to the employee’s arrest/conviction. On appeal, the court upheld the previous decision in favor of the employer stating that Labor Code Section 432.7 does not prevent an employer from questioning an employee about an arrest pending trial or from basing an employment decision on an arrest that results in a conviction. There are no limitations placed on the statute in regards to whether or not the conviction occurs before or after said employment decision.
If you need additional information regarding southern California labor law or if you have a question about wrongful termination, please get in touch with the experienced attorneys at Blumenthal, Nordrehaug & Bhowmik.