Thursday, January 31, 2013

OK to Base Firing on Expunged Conviction

In a first-of-its-kind ruling in South Carolina, a federal judge has dismissed a woman’s wrongful termination lawsuit, holding that a 25-year old conviction can be used to support a discharge even though the conviction had been expunged by court order years earlier.

Laura Cervantes, who had been convicted of a misdemeanor in Wisconsin in 1986, was employed by Wells Fargo Bank in South Carolina.  She applied for and got a court order expunging the criminal record, but a routine background check by Wells Fargo in 2012 turned up the conviction based on the woman’s fingerprints.  Wells Fargo fired her based on the newly-discovered conviction.

Cervantes sued for wrongful termination, arguing that firing an employee on the basis of an expunged conviction would thwart the purpose of the expunction statute, which is to “allow a convicted person to live free from the stigma associated with such a conviction.”  She asked the court to determine that, even though she had been an at-will employee who could be fired for virtually any reason, public policy prohibited her from being discharged based on a conviction that had long ago been properly expunged in accordance with state law.

U. S. District Court judge Cameron Currie was not convinced.  She noted that there was no legislative history indicating that the expunction statute was to be interpreted in the way suggested by Cervantes.  Also, no case had ever recognized a claim for wrongful termination based on an expunged conviction, and there was no statute prohibiting employers from considering convictions, expunged or otherwise, when making employment decisions.

Cervantes also argued that Wells Fargo had violated its own internal policy by terminating her for having the expunged conviction.  Judge Currie pointed out, however, that the doctrine of at-will employment did not recognize an exception based on violations of company policy.

The case is Cervantes v. Wells Fargo Bank, N.A. and can be found here.

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