California Employment Law
Have California Employment Law Questions? Ask a Lawyer.
Hello and thank you for your question today
Are you online with me?
Welcome to the chat
Yes, I am here...can you help me?
What kind of job is this? Is it a state run job? Also, does it involve anything were drinking could be a problem? i.e. there is a legitimate business interest in terminating you?
I am a photographer for a portrait studio.
I cannot imagine how this would affect my work or my performance or my job in any way shape or form.
Unfortunately, California is an at will employment state. This means that your employer is allowed to terminate your employment for any reason that does not violate your civil rights or is in breach of contract. Thus, if you are a union employee, or if you have an employment contract that says you must be fired for cause, then you might have legal recourse against them for terminating you. Otherwise, your employer legally would be allowed to fire you for having the felony DUI. That being said, many courts have recognized that many types of convictions are actually discriminatory based on race. If
you believe the reason that you were terminated could be related to a protected category, such as your age (40 or older), gender, race, religion, genetic information, pregnancy, national origin, creed, or disability then the termination would be deemed wrongful and you would have a cause of action. So, if you were fired, and you were willing to state that you were fired because of your race, then a court would likely consider giving you protection as long as you were a part of a protected class.
Does that make sense?
Unfortunately, yes, that does make sense. But why would they hire me knowing it upfront and then fire me afterwards when the lifescan came through.
The fact that they hired you knowing it upfront means that there is likely some illegal thing going on somewhere, otherwise they would have fired you for that reason as they are allowed to do so under a theory of at will employment. The United States Supreme court has held that employment practices which may be neutral on their faces may operate to perpetuate prior discrimination. Title VII states that an unlawful employment practice based on disparate impact is established if you can prove that a company uses a particular employment practice that cause a disparate impact on the basis of race, color, religion, sex, or national origin. Can you think of any other reason why they are really trying to get rid of you?
Or are you part of a union or do you have an employment contract stating that you can only be fired for cause?
Not part of a union, and no, no contract. Just a seasonal photographer from now until October taking pictures of senior high school students. I am a college graduate, I am doing a great job...no complaints. Just today, being treated totally differently and in fear of losing my job because of the return of the lifescan results......I have been working for them for two weeks now.
I realize that the law is not entirely in your favor here and I am truly sorry to have to deliver bad news. Nonetheless, I trust that you will appreciate an accurate explanation of the law and realize that it would be unprofessional of me and unfair to you to provide you with anything less. You should try to set up a meeting with your supervisor and explain in a calm and positive manner that you really like your job, really like working there, and wonder if there is any way that they could allow you to continue your employment there. If the sole reason for the firing was for the felony DUI, they would be allowed to fire you, however, as you can definitely make an argument that you were in fact discriminated against because of a protected category (as evidenced by the fact that it was okay when you were fired and they tried to cover it up) it may be easier for them to just allow you to continue working there especially since you have been doing a great job to date
But without a constitutional or statutory protection in place, and since you are an at will employee, then they would be in the right to terminate your employment there
As a side note, you should highly consider looking into having your felony expunged. Once expunged, then you would not have to divulge this to future employers
Does all of that make sense?
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).