In California, an employee has the right to pretend that criminal convictions, which have been dismissed or judicially expunged, essentially do not exist (with certain exceptions). Labor Code section 432.7 provides such protections.

So, unless an exception applies (such as for law enforcement officers), employees who do not disclose those convictions on employment applications or other documents are not “lying” on their applications. Employers who refuse employment or who fire workers for not disclosing those dismissed convictions, or on the basis of those crimes, violate the law. So far so good.

The Court of Appeal’s opinion in Garcia-Brower v. Premier Automotive Imports of CA, LLC  (opinion here) applies section 432.7 to a unique set of circumstances, and highlights how employers can violate the law when they did not necessarily have to.

First, some background. Lilia Garcia-Bower was hired by Premier, an auto dealership, to take the place of another worker who was going out on maternity leave.  Garcia-Brower previously had been convicted of misdemeanors grand theft for conduct at a previous employer – also an auto dealership.  However, Garcia-Brower repaid the previous employer, served her time, and applied to have the conviction dismissed. The Court granted that application.  So, when she applied for work at Premier, she answered “no” to the conviction questions on the application, which expressly excluded expunged convictions as California law requires. In addition, Premier’s background check did not reveal the expunged conviction.

The problems arose because, as part of her duties, Garcia-Brower had to qualify for a  Dept. of Motor Vehicle access program, which required another background check via the California Department of Justice. That application, however, required Garcia-Brower to disclose her prior conviction to the Cal. DOJ, which she did not do.  The DMV rejected Garcia-Brower’s application because of her prior conviction.  As a result, Garcia-Brower could not do an important part of the job for which Premier had hired her.  Now Premier learned that Garcia-Brower had a conviction that she had not previously disclosed. Premier immediately terminated her employment without investigating, calling the DMV, or giving Garcia-Brower a chance to fix the problem.  During that termination process, Garcia-Brower admitted she had had a prior conviction, but maintained it had been dismissed and need not have been disclosed.  Premier did not relent, and noted on its paperwork that Garcia-Brower was fired for…. falsifying her job application.  Two weeks later, the DMV corrected itself and rescinded its denial letter.  But Premier did not reinstate Garcia-Brower.

Garcia-Brower filed a claim with the Labor Commissioner. The Labor Commissioner decided that Premier fired her in violation of section 432.7, and in retaliation for her withholding her dismissed conviction, and ordered reinstatement and back pay. The Labor Commissioner represented Garcia-Brower in court to enforce its conclusion. The trial court, however, granted Premier’s motion for “nonsuit,” deciding that the Labor Commissioner could not prevail on its claims, because Premier did not know when it discharged Garcia-Brower that she had failed to disclose a *dismissed* conviction. That is, the trial court reasoned that when Premier fired Garcia-Brower, all it knew is that the DMV found a conviction that Garcia-Brewer did not disclose, not that it was “dismissed” or expunged.

The Court of Appeal reversed the trial court’s “nonsuit” and held that the case should go to a jury.  The Court reasoned that Premier listed as its reason for termination that Garcia-Brewer lied on her application, not that the DMV’s rejection of her application disqualified her from working. The Court also held that Premier did not give Garcia-Brower any opportunity to reconcile her clean background check with the DMV’s report.  Nor did Premier hire Garcia-Brower when DMV rescinded its letter. Garcia-Brower had told management during her termination meeting she had a dismissed conviction.  Also of note, the employee Garcia-Brower was replacing was not leaving for two months, so Garcia-Brower was available to do the DMV work before the departing employee actually left.  And although Garcia-Brower was employed “at will,” the lack of investigation into why the background check was clean but the DMV report was not troubled the Court enough to reverse the nonsuit.  Perhaps the Court of Appeal inferred that Garcia-Brower’s conviction at another dealership, for theft,  might have factored into the termination decision. (Ya’ think?)

It may well be that Premier can win this case.  Had Premier simply told Garcia-Brower that the DMV’s rejection of her application precluded her from doing the job, she was discharged, and she can reapply if the DMV clears her, perhaps it would have been a different outcome. Had Premier not listed “application fraud” as the reason for termination, again, perhaps it would have been a different case.  But, alas, no.  Be careful out there.