Employer’s Failure To Investigate Whether A Conviction Was Judicially Dismissed Indicates Retaliation

CATEGORY: Client Update for Public Agencies, Fire Watch
CLIENT TYPE: Public Employers, Public Safety
DATE: Dec 08, 2020

Tracey Molina was hired by Premier Automotive Imports of CA, LLC (Premier), an automobile retailer, in January 2014.  On her job application, Molina did not disclose a dismissed conviction for misdemeanor grand theft.  The application asked if the applicant had ever pleaded guilty, or been convicted of, a misdemeanor or felony.  But it also instructed that “the question should be answered in the negative as to any conviction for which probation has been successfully completed . . . and the case has been dismissed.”

After passing a background check indicating that she had not sustained any felony or misdemeanor convictions in the past seven years, Molina began working at Premier in February 2014.  However, after four weeks with the company, the Department of Motor Vehicles (DMV) mistakenly reported to Premier that Molina had an active criminal conviction for grand theft. Molina’s conviction was officially dismissed in November 2013, but the Department of Justice did not enter the dismissal in its database until March 25, 2014.  Premier double-checked its background report, which indicated that Molina did not have any convictions.  But Premier did not investigate the discrepancy between its background report and the DMV’s report, nor did it contact the DMV for more information.  Premier terminated Molina for falsification of her job application, despite Molina’s several explanations that her conviction had been judicially dismissed.  When the DMV issued Premier a corrected notice three weeks later, Premier did not rehire Molina.

Molina filed a retaliation complaint with the Labor Commission in April 2014.  In December 2016, the Labor Commissioner determined that Premier had unlawfully discharged Molina and ordered Premier to reinstate her with back pay.  Premier refused to comply with the order.  The Labor Commissioner then filed an enforcement action on Molina’s behalf for violations of Labor Code sections 98.6 and 432.7.  The trial court found in favor of Premier on the grounds that there was no evidence Premier was aware at the time it terminated Molina that her conviction had been judicially dismissed.  The Labor Commissioner appealed.

Labor Code Section 432.7 prohibits an employer from asking a job applicant to disclose any conviction that has been judicially dismissed and bars an employer from using any record of a dismissed conviction as a factor in the termination of employment.  Section 98.6 prohibits an employer from retaliating against an applicant or employee because the applicant or employee exercised a right afforded to him or her under the Labor Code.

The Court of Appeal determined the trial court erred because the Labor Commission had presented sufficient evidence to prove that: 1) Premier was aware or had reason to believe that Molina’s criminal conviction had been judicially dismissed; 2) Premier retaliated against Molina for failing to disclose her dismissed conviction; and 3) the company used the dismissed conviction as an impermissible factor in her termination.

The court noted that Premier had credible information – in the form of its own background check – that suggested the DMV letter Premier received was incorrect or incomplete.  Molina also testified that she explained to Premier several times that her conviction was dismissed.  However, Premier took no steps to contact the DMV or otherwise investigate the discrepancy before terminating Molina on the basis of a “falsified” job application.

Further, the court noted that there was sufficient evidence to establish that Premier’s employment decision was substantially motivated by Molina’s failure to disclose her dismissed conviction on her job application. For example, the court pointed to evidence that when Molina was gathering her belongings to leave, she apologized and her supervisor responded, “You should have told me.”  Premier also explicitly indicated that Molina was fired for “falsification of job application” just days after it received the DMV letter, and the company refused to rehire her even after the DMV corrected its mistake.  For these reasons, the Court determined that the trial court improperly entered judgment in Premier’s favor on the Labor Commissioner’s claims.  The court remanded the case for a new trial.

Garcia-Brower v. Premier Auto. Imports of CA, LLC, 55 Cal. App. 5th 961 (2020).


This case serves as an important reminder that criminal records and DMV notices can be inaccurate.  Public agencies should ensure they investigate any discrepancies regarding an employee’s criminal records before making an employment decision.  In addition, California’s Fair Chance Act (Gov. Code Section 12952) requires employers to conduct an analysis as to whether an applicant’s criminal history is relevant to the job, and requires employers to allow an applicant to explain a conviction before disqualifying that applicant. 

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