Justia Lawyer Rating
BBB Accredited Business
10 Best 2018
The National Trial Lawyers
Super Lawyers - 10 Years
Multi-Million Dollar Advocates Forum
The State Bar of California
Client Champion Silver 2020
National Employment Lawyer Association

California Employers not Allowed to Retaliate or Discrminate Based Upon Criminal Conviction of Employee

While most employees are employed at-will in California, employers may not terminate workers for unlawful reasons or in violation of public policy. One right that workers have is to not disclose convictions that have been judicially dismissed. In Garcia-Brower v. Premier Automotive Imports of California, LLC, Cal. Ct. App. Case No. A156985, the appeals court reviewed a case in which a worker was fired after a DMV check revealed a judicially dismissed conviction that she had not disclosed on her job application.

Factual and Procedural Background

Tracey Molina entered a no-contest plea to misdemeanor embezzlement in the amount of $2,600 from her former employer, Ocean Honda, in May 2010. She accepted responsibility for her actions, paid restitution to Ocean Honda, completed 15 hours of community service, and served three years of probation. After her sentence was completed, Molina filed a motion with the court to have her conviction judicially dismissed. Her motion was granted, and the conviction was dismissed from her record in Nov. 2013.

Early in 2014, Premier Automotive Imports had an upcoming vacancy for a contract and DMV clerk because of the impending maternity leave of an employee. The office manager for Premier, Sylvia Cunningham, asked Molina to apply for the position. She had known Molina for 10 years and thought that she would be a good fit for the job. On Molina's job application, she answered no to a question about whether she had ever been convicted for a misdemeanor or felony because the California Labor Code allows people to answer no about past convictions that have been judicially dismissed. Premier completed a Vigilant background check of Molina, which came back clear. Molina started working in the contract DMV clerk position, completing training under the tutelage of the incumbent clerk who was scheduled to go on maternity leave.

Approximately 75% of Molina's job required her to compare DMV records to reconcile the information with the company's records. To perform this part of her job, Molina needed to have access to the Business Partnership Automation Program with the DMV. The DMV required people who would have access to the system to pass a Department of Justice background check. When Molina's background was checked, the DOJ found the previous embezzlement conviction. The DMV sent a letter to Premier stating that Molina was not approved for access to the Business Partnership Automation Program because of the previous conviction. There was a lag between the time when the Superior Court submitted its order to judicially dismiss the conviction and when it was updated in the DOJ's system. That did not happen until March 14, 2014. Molina's background check was performed on March 7, 2014.

Cunningham and Yvonne Hendricks, an office manager, learned that Molina had the prior conviction and were surprised. Molina was summoned into the office and was told that her job was being terminated for falsification of her job application. She was given a copy of the letter from the DMV. Cunningham told her that she should have revealed her previous conviction. She was also marked as ineligible for rehire. The DMV sent an updated letter three weeks later, but Molina was not rehired. She filed an administrative complaint with the Labor Commission, and the commissioner ordered Premier Automotive Imports to rehire Molina and to pay her back pay. Premier's appeal of the administrative order was denied. When the company refused to comply with the order, the Commissioner filed a lawsuit on Molina's behalf against Premier.

The case went to trial. After the Commissioner finished presenting its case, Premier filed a motion for nonsuit. It argued that the evidence that the Commissioner had presented was insufficient to support a claim of retaliation. Premier argued that the Commissioner had failed to present evidence that Premier knew about the judicial dismissal of Molina's conviction at the time that she was terminated and argued that the Labor Code required that the company knew to support a retaliation claim.

The Commissioner argued that there were factual disputes about whether Premier fired Molina for not disclosing the dismissed conviction on her job application. It noted that Molina had been told by Cunningham that she should have disclosed the dismissed conviction and that the company had listed the falsification of a job application as the reason for Molina's termination. The trial court granted Premier's motion for nonsuit, and the Commissioner appealed.

Issue: Whether there was sufficient evidence that Premier's termination of Molina was motivated by her failure to disclose the judicially dismissed conviction?

The Commissioner argued that the court should not have granted the defendant's motion for nonsuit because there were factual disputes about whether the company properly investigated the discrepancy between her Vigilant background check and the DOJ background check. The Commissioner argued that the company should have investigated the discrepancy before rushing to fire Molina. It also pointed to the fact that Premier listed the reason for terminating Molina as the falsification of her job application by answering no to the question about past convictions. Premier argued that the company did not know that the conviction had been dismissed and that the fact that Molina told them at the termination meeting that it was a judicial dismissal was irrelevant.

Rule: Employers may not terminate people for exercising their rights under the California Labor Code, including the right to not disclose judicially dismissed convictions.

Under Cal. Lab. Code § 98.6, employers in California are forbidden from retaliating against employees for exercising their rights under the law.[2] Under Cal. Lab. Code § 432.7, workers have a right to answer no on job applications about prior convictions when those convictions were judicially dismissed.[3] Premier argued that the statutes require the company to have a notice that the convictions were dismissed before they can be held to be liable in a retaliation action at the time that they terminate the employees. The Commissioner argued that the conflicting background checks should have prompted Premier to investigate the discrepancy before moving to terminate Molina based on a failure to disclose the previous conviction.


Under California law, employers may not retaliate against workers for exercising their protected rights. Retaliation claims may be filed against employers who terminate employees for exercising their rights to not disclose judicially dismissed convictions on their job applications.

The appeals court looked at the evidence that had been presented by the Commissioner at trial and analyzed it under Cal. Lab. Code §§ 98.6 and 432.7. It noted that the prohibition against retaliation under § 98.6 applied to all of the rights contained in the Labor Code, including the right under § 432.7 to not disclose judicially dismissed convictions. The court said that the clear purpose of § 432.7 was to prevent employers from misusing criminal records.

The Commissioner was required to present evidence that Premier relied on Molina's criminal conviction as a reason for its termination decision. The court found that the company failed to investigate the discrepancy between the two background checks before deciding to terminate Molina. It also found that the statement made by Cunningham to Molina that Molina should have disclosed the judicially dismissed conviction combined with listing falsification of a job application as the reason for terminating her job established sufficient evidence that the decision was motivated by her failure to disclose in contravention of the rules of the Labor Code.


The appeals court reversed the trial court's decision to grant the motion for nonsuit. The case was returned to the lower court for a new trial.

Get Help From an Experienced Los Angeles Employment Lawyer

If your employer has unlawfully retaliated against you, you may have the right to recover damages and to receive other types of legal remedies. Working with an experienced Los Angeles employment lawyer at the law firm of Steven M. Sweat APC might help you to prevail in your retaliation claim. To learn about your rights, contact us today for a free consultation by calling us at 866.966.5240.


[1] Garcia-Brower v. Premier Automotive Imports of California, LLC

[2] Division 1. Department of Industrial Relations [50 - 176]

[3] Division 2. Employment Regulation and Supervision [200 - 2699.5]

[4] Retaliation

Client Reviews
Steve was very attentive and very quickly grasped the essence of my situation. His work and advice was the best I could find and resulted in a very favorable settlement. Can think of no one else in his position that is as informed, knowledgeable, and personable as Steve. He has my highest recommendation. Rich
I would sincerely thank Steven and his team for their professionalism and assistance during our most devastating time. Steven made me feel important, not just as a client but also as a friend. He never failed to inform or update me. Moreover, he was very empathetic and encouraging during this difficult process. He really made a positive difference in our lives. Araceli
All the way through the course of our legal proceedings, we were offered a small amount for settlement. Unsatisfied, we rejected the offer and with the help, the encouragement and the guidance Steven brought to the table were instrumental for us to move forward with the litigation, which eventually led to achieving positive results and a recovery for a much greater amount than what was initially offered. He went above and beyond his call of duty! Desiree