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Wrongeful Termination?? California

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  • Wrongeful Termination?? California

    I was arrested in May, first time offense, felony charge of possession of a controlled substance, was granted DEJ and completed this process. Just waiting the time for it to be wiped from my record. I applied at a company, was hired, worked for 1 week, then was fired. I was told I am being fired because I lied on my application and was a convicted felon. I asked my lawyer prior to filling out my application, and the only question, it asked was, have you ever been convicted of a felony? Technically, as we know, through the DEJ program, my charges have been deferred by the courts, and will be wiped clean, given I complete the classes, 2 clean UA's ,and stay out of any trouble for the 18 month period. So, technically, I have not been convicted of a felony. The app never asked if you have been arrested. Now, I came across a case under the California Labor Code:
    The Labor Code of the State of California provides in part as follows:

    ยง432.7 . Disclosure of arrest or detention not resulting in conviction or referral or participation in diversion programs; violations; remedies; exception; screening prospective concessionaires.

    (a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.

  • #2
    Are you a public sector employee?
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.


    • #3
      Public Sector or not?

      Good point. I did see how my example case does not completely apply to me, because I am not in the public sector. I am trying to see if that labor code would apply to me. I apologize for the misleading scenario. I am however, very interested in finding any labor laws that may prove this employer to be wrongful in my termination. Not to mention, that they hire you first before receiving back the results of the background check. All feedback is greatly appreciated.




      • #4
        While it may not help with your current situation, in the future you might want to be up front with a prospective employer immediately. Bring up the subject and let them know. One thing employers really hate is dishonesty or even the appearance that you are dishonest. If you are upfront from the beginning, it could defuse the situation.


        • #5

          I can see your point of view on that. After my arrest, I had applied at a company previous in the same industry and was hired, no word of my case. So when that company closed and I applied at the new one, I didn't think of being upfront about this arrest. I know this much, I answered the application truthfully and I see this section of the labor code which looks like they cannot fire me for being part of a drug deversion program. I have not been convicted. I passed my drug screen. And would happily submit to random drug testing.

          From some reading I can see that there is a line between, breaking a State Labor Code and Breaking a company policy. Doesn't a labor code supercede a policy if broken? I am getting ahead of myself here, but I cant help but think of all these different variables here. I am just someone who caught a case, and now must try and find a field of work which doesn't run my background, or find a company that knows the law. I can say this factually, that alot of the smarter companies now, on their applications, in the section where it asks you if you have ever been convicted of a felony, are adding an area stating please do not inform us of any pretrial or posttrial DEJ programs, drug deversion programs, etc. I am assuming that they recognize that these are not in fact CONVICTIONS, and so they dont consider this to be grounds for not hiring an individual. Do they put this because, it is their specific company policy, a state law,?????
          Last edited by upsetnunemployed; 10-30-2007, 12:07 PM.


          • #6
            ???????????Does this break a labor code in CA?????????

            Anyone familiar or has heard of being fired for this???

            Please respond. Thanks


            • #7
              Evidently no one has any references to laws that will support your position, or they would have posted them.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


              • #8
                References to Laws

                How about a comment on the Labor Code that I already referenced. In your professional opinion do you see my position in the same scope as this code that I have referenced above.



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