Recent Employment Law Decisions

California Courts of Appeal

An employer’s failure to investigate could be evidence of an illegal motive. Post-termination statements and evidence can sometimes be admissible as well.

GARCIA-BOWER v. PREMIERE AUTOMOTIVE IMPORTS OF CA., LLC

EMPLOYEE MOLINA DID NOT DISCLOSE A DISMISSED CONVICTION ON HER JOB APPLICATION. THE CONVICTION WAS ERRONEOUSLY REPORTED BY THE DMV.

Plaintiff Tracey Molina applied for a job with Defendant Premiere Automotive Imports of Ca. On her job application, she truthfully answered “no” to a question asking about criminal convictions, and allowing her to exclude dismissed convictions. Molina had pled guilty and been convicted of misdemeanor grand theft, but had the conviction dismissed 4 years prior.

Premiere employed a private background check company to perform a check on Molina. The report correctly returned with no reportable criminal convictions.

As part of her job, Molina needed access to DMV files. Consequently, the DMV conducted its own background check through the Department of Justice. A DOJ attorney later testified that dismissals sometimes lag in the system, despite the law that they be reported within 30 days. Because Molina’s dismissal had not been entered in the DOJ system, the DOJ reported back incorrectly that she had an active conviction. The DMV therefore refused her access, and reported the reason to Premiere.

PREMIERE FIRED MOLINA WITHOUT ANY INVESTIGATION AT ALL

Premiere fired Molina the business day after receiving the DMV report. It conducted no investigation into the reason for the discrepancy between the private background check and the DOJ’s findings. It did not notify Molina of the issue prior to firing her, and it gave her no opportunity to respond to the issue.

During the termination meeting, Molina explained repeatedly that her conviction had been dismissed. When the company fired her anyway, Molina apologized, and a company official responded, “You should have told me.” Premiere stated on the termination paperwork that the reason for firing was falsification of the

employment application.

THE LABOR COMMISSIONER FILED ON BEHALF OF MOLINA, BUT WAS NONSUITED AT TRIAL

Molina filed a complaint with the Labor Commissioner, claiming violation of Labor Code §98.6 (retaliation for exercising rights under the Labor Code) and 432.7 (using a dismissed conviction as a reason for an adverse employment action). The Labor Commissioner found in Molina’s favor, and the Director upheld the decision on appeal.

Premiere nonetheless refused to follow the Labor Commissioner’s order. The Labor Commissioner therefore filed a complaint on Molina’s behalf with the Superior Court.

After the Labor Commissioner’s case in chief, the trial court granted nonsuit, determining that there was no evidence that Premiere knew of Molina’s protected act prior to firing her. The Labor Commissioner appealed.

THE LACK OF ANY INVESTIGATION AND POST TERMINATION EVIDENCE CONSTITUTED EVIDENCE OF AN ILLEGAL MOTIVE

The appellate court reversed. It found that Premiere’s rush to judgment could cause a reasonable jury to find that it had an illegal motive in firing Molina.

Specifically, the difference between the private background check company’s report and that of the DOJ should have caused Premiere to question the latter’s accuracy. In fact, at trial Premiere’s witnesses admitted that they did have concerns about the discrepancy, but did nothing at all to understand it. The court cited to Cotran v. Rollins Hudig Hall International, Inc., 17 Cal.4th 93 (1998) that an adequate investigation includes, at a minimum, notice to the employee of the concern being investigated and a chance for the employee to respond.

Furthermore, Molina told Premiere in the termination meeting that the conviction had been dismissed. This was relevant given the totality of the facts in this case, even though Premiere had already made its termination decision.

Premiere argued that its decision was based not on the failure to disclose a dismissed conviction – which right Molina was guaranteed under Labor Code §432.7 – but rather on the fact that the DMV had stated that she could not have access to its files, and therefore she could not do her job. But this claim was refuted by the reason Premiere wrote in its own termination paperwork – that the firing was for falsification – as well as its employees statement to Molina in the termination meeting that “You should have told me.”

The Labor Commissioner did argue that an employer’s knowledge should not be an element when the claim involves an applicant or employee’s exercise of the right not to disclose a fact. The court explicitly did not reach that issue here.

The appellate court reversed and remanded for trial.

CONCLUSION

Employers should remember that the purpose of a workplace investigation is not to appear fair, but actually to be fair. Those who do no investigation, or even an inadequate one, open themselves up to liability.

Congratulations to our colleagues with the Labor Commissioner for continuing to protect California workers.

COA, 1st Dist., Div. 1,  Filed 10/15/20. Opinion by Justice Sanchez.

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Legislative Update
By Mariko Yoshihara, CELA Legislative Counsel & Policy Director

2020 Election Results, New Emergency Workplace Standards, and What’s Ahead

Mariko Yoshihara

For many of us, Election “Day” was a week (or more) filled with a lot of anxiety as record-high mail-in ballots caused significant delays in projecting election results. For the campaigns on which CELA took positions this year, we unfortunately did not get the wins we were looking for. Proposition 22, the misguided and misleading campaign led by Uber, Lyft, and Instacart, to strip their workers of employment protections and benefits, won by about 17 percentage points. Despite our best efforts, we simply could not compete with the $200-million, record-breaking spending by the Prop 22 campaign seen on TV ads, paid social media posts, and billboards across the state.

Perhaps more concerning is what this win could signal to other stakeholders and industries in California (and around the country): that an effective strategy for enacting favorable laws is to simply avoid the legislature altogether and throw large amounts of money into a ballot measure instead. The aftermath of Proposition 22 is still unfolding as gig companies like Uber and Lyft are trying once again to evade liability for misclassification in existing cases by arguing that Proposition 22 “dismantles the foundation” for any relief that could be granted to these workers. We can also expect to see many companies try to revise their operations framework in order to fit within the Prop 22 paradigm.

CELA and our members are working together with various labor and worker advocates to strategize around minimizing the impact of Proposition 22. As well, we are strategizing around how best to prepare and confront similar ballot initiative efforts, modelled after Prop 22, to further weaken workers’ rights in California.

Proposition 16, a ballot measure supported by CELA, which would have removed the ban on affirmative action involving race-based or sex-based preferences from the California Constitution,

was also defeated with more than 57% of Californians voting No. This, too, was a disappointing loss, because voters failed to overturn a long overdue ban on programs that promote equal opportunity and fairness to our public contracting and employment practices.

And finally, our CELA-endorsed senate candidate, Kipp Mueller came within 6,500 votes (out of nearly 400,000) of flipping a historically Republican district, but ultimately could not get the win. Hopefully, this is not the end of Kipp’s efforts, and even more CELA members will run for office so that we can ensure workplace justice remains a priority in our state legislature.

Given these results, the state legislature will likely take shape with the following make up next year: Assembly comprised of 60 Democrats to 19 Republicans (and 1 independent) and the Senate with 31 Democrats to 9 Republicans.

With the election now behind us, it is time to focus on what’s ahead. In the immediate future, we will be seeing new Cal/OSHA standards going into effect by the end of the month. On November 20th, the Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board unanimously adopted emergency temporary standards to protect workers from hazards related to COVID-19. The temporary standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard and can be found here. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:

  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
  • Face coverings – providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Criteria for employees to return to work after recovering from COVID-19.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

In the coming months, CELA and other allies and advocates will be planning for legislative proposals for the 2021-2022 Legislative Session. The upcoming session most likely will be as unpredictable and challenging as it was this last year, with limits and restrictions on bills and bill hearings. However, we hope to have as much success (and more) at addressing some of the most pressing issues facing workers during these unprecedented times. If you would like to be involved in our legislative planning efforts, please email mariko@cela.org.

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