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"Do I have a discrimination lawsuit"?

Moreno Valley, CA |

I was interviewed at Olive Garden and hired on the spot on 7/10/12. On my app I disclosed all my information, I checked yes on the question pertaining to background(felonies). During my interview I was never asked about it. After being hired I was asked to come in the next day to fill out some papers regarding tax credits, I was asked about my background by an Asst. Mgr. Miguel, he was not present the day before when I was hired. I told him I stated the information on my application. The next day I was called in to speak to the manager I was hired by, when I arrived we spoke about my background. I aIso told him that I stated the information in my original app. He asked if I was on parole I said no, so he asked for my parole agent's name and #. Its been a week and I've called lots of times

I've called several times and the Manager hasn't returned any of my calls. He told me that he just needed to verify that I wasn't on parole anymore which I'm not, I haven't worked yet but I was put into the system as an employee the day that I was hired.

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Attorney answers 6


Were you fired? when you say you called a few times, does that mean you have never worked and never been paid? I think that is what you are saying, but it is not clear. Perhaps you can update this information.

For more information, contact me at or (310) 857-5293. You can also view my website at LEGAL DISCLAIMER: NO ATTORNEY-CLIENT RELATIONSHIP: The information provided herein is intended for informational purposes only. This information does not necessarily reflect current legal or factual developments and is general in nature. Nothing set forth in this email should be construed as providing legal advice regarding an individual situation. Mark Wagner and/or the Wagner Legal Group makes no warranty, express or implied, about the correctness, accuracy or reliability of the information set forth in this email. The information provided in this email should not be construed as legal advice and does not constitute an engagement of legal services with Mark Wagner and/or the Wagner Legal Group or establish an attorney-client relationship. There should be no expectation that an attorney-client relationship has been created unless you receive and accept a written form of engagement setting forth the terms of the representation. This response may constitute Legal Advertising/Marketing.


An employer's conduct is only "discriminatory" pursuant to California law if the employer is motivated by an employee or prospective employee's race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age (over 40), or sexual orientation. Unfortunately, this means that refusing to hire someone on the basis of any other characteristic, such as one's criminal record, is not discriminatory or illegal in any way.

All the best to you moving forward.

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.


No way that I can see that "felon" is a protected category in this situation. Therefore, no basis for a discrimination suit. As a wild guess, the managers may have wondered if your snarky answer implied an intent to deceive, or at least a lack of candor, even though you application was accurate.

We do not have a client/attorney relationship until you make an appointment, we discuss your case face to face, I accept a retainer, and we explictly agree to enter into representation.


Your potential remedy is better under federal law than state law. An employer may be breaking federal law if it uses an applicant's or employee's arrest or conviction record to make employment decisions. The Equal Employment Opportunity Commission (EEOC) has new Guidance that states the circumstances under which this kind of discrimination takes place.

I urge you to read through this document. If it applies to your situation, please contact an experienced plaintiffs employment attorney for potential representation. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area.

I hope you can resolve your situation and wish you the best.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

Michael John Tonsing

Michael John Tonsing


FYI, generally, employers may ask applicants and employees whether they were ever convicted of a crime and use this information to make employment decisions. Unlike an arrest, which is a "no-no" question, generally felony conviction questions are OK for employers to ask because a conviction requires proof of criminal guilt. That includes: ◦ a guilty verdict, ◦ a guilty plea, ◦ a plea of no contest, or ◦ a court finding of guilt (whether or not a sentence was imposed). Although employers may lawfully ask individuals about most types of criminal convictions, an exception applies to, and employers may not ask about: ◦ drug possession convictions, if the individual completed a drug treatment program and had the charges dismissed; or ◦ convictions for the following marijuana-related offenses that occurred more than two years before the date of the inquiry: ■ possession, transportation, or sale of 28.5 grams or less of marijuana; ■ possession of a device to unlawfully inject or smoke marijuana; ■ assistance in the unlawful use of marijuana; and ■ use of marijuana that is not administered or prescribed by an individual licensed to do so. See: 1.Cal Labor Code §432.8; Cal Penal Code §1210.1(d); Health & Safety Code §11357(b), (c), §11360(c); Health & Safety Code §11364; Health & Safety Code §11365; Health & Safety Code §11550; and, Federal EEOC Compliance Manual N:6016 (Notice N-915-061 9/7/90).


You haven't identified what kind of position you were hired for, nor what kind of offense your felony conviction was for. Both of these are critical for any determination that the use of a conviction to deny employment is unlawful or even suspect. In most cases, it will not be unlawful for an employer to consider a felony conviction in determining the suitability of an applicant for employment. In the cases where that consideration by the employer may be unlawful, it will be most often be (in conjunction with other factors) because of a genuine lack of any potential intersection between the duties of the position and the nature of the crime.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


Most employees are at will. Check out this link to see more on that:
But, in California, criminal histories or "rap sheets" compiled by law enforcement agencies are not public record. Only certain employers such as public utilities, law enforcement, security guard firms, and child care facilities have access to this information. (California Penal Code §§11105, 13300) With the advent of computerized court records and arrest information, however, there are private companies that compile virtual "rap sheets."

Employers need to use caution in checking criminal records. Information offered to the public by web-based information brokers is not always accurate or up to date. This violates both federal and California law when reported as such. Also, in California, an employer may not inquire about a marijuana conviction that is more than two years old.

Christine C McCall

Christine C McCall


Criminal convictions are public records. Compilations of convictions prepared and maintained by law enforcement are not. But the ubiquity of LiveScan reports has made that distinction nearly one without a difference.

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