According to a recent news article from HR.BLR.com, an employee was driving his personal vehicle when he was arrested and charged with drunk driving in California. At the time of his arrest, he was working for a major insurance carrier as a claims handler.
Two weeks after his arrest, employer told him he needed to answer a series of questions, and he would face termination if he refused to answer these questions. He disclosed the details of his arrest. He was given a probationary sentence, where, if he were to abide by all terms of the court and prosecutors, they would dismiss his probation in two years. This is a fairly standard deal for first-time DUI offenders in California.
About one year after the time when he was first arrested, his employer informed him that he was no longer allowed to drive any vehicles for the company, which was a necessary part of his job as a claims handler. He also was told that he had three months to get the charges dismissed against him, even though this was not possible, given he had a two-year probationary period to complete. Two months later, he was told that he had one month left to get his charges dismissed, or he could find another job with the company that did not require driving. He applied for several jobs but was not offered a position and was subsequently terminated from his employment.
He tried to get the court to shorten his probationary sentence, so he could keep his job, but the court would not do so at that time. The court did, however, shorten it by a year following his termination from his employment.
A year after his termination, employee filed a claim against his employer for wrongful termination in California. Specifically, he filed under Section of 432.7 of the California labor laws. Pursuant to that code section, an employer is not allowed to ask for disclosure from an employee about any arrest that did not result in a conviction. Employers are also not allowed to base a job offer, or a condition of employment, and this includes termination, on arrest record alone without a conviction.
The employer filed a motion to dismiss on grounds that employee was actually convicted of DUI, though not before they fired him. To this employee responded that his record was expected to be expunged, in any event. Trial court granted defendant’s motion to dismiss, technically called a “demurrer” and stated, since employee’s DUI arrest did result in a conviction, the protections in the California labor code did not apply. At this point, employee filed an appeal with the California court of appeals, but it does not appear that court has reached a decision on the matter as of this time.
This is a complicated issue, and, if you get arrested, one of the best things you can do is speak with an experienced Orange County employment lawyer about the effects being arrested for a crime may have on your employment.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Can California employer terminate employee for DUI arrest?, January 5, 2016, HR.BLR.com, By Cathleen S. Yonahara,
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