GO TO:


    - INDEX OF CASES

    - FORUMS

    - ARCHIVES

          • NEWS

          • CASES

          • EDITORIALS

  January 12, 2009
  Source:  WorkInjury.com
  ----------------------------

CA/4:   Does Subsequent Federal Drug Law Bar Claim for Past State Law Violation on Job App?

Labor Code Section 432.7/8 prohibits questioning a job applicant about certain drug convictions more than two years old. In this published opinion, a federal law was passed after the alleged violation of these sections occurred.

So the issue was whether a lawsuit could still be maintained under state law for what was a labor law violation when it occurred but which subsequently conflicted with a new federal law enacted after the job applicant had already filed suit.

In 2004 the plaintiff filled out a job application for employment with Longs Drug Stores. In 2005 he filed his lawsuit alleging that Longs had violated California law because the employment application contained a question asking whether he had been convicted of a crime involving the use or possession of illegal drugs during the preceding seven years - in violation of Labor Code Section 432.7/8.

Then in 2006 while the suit was pending, a federal statute was passed by Congress - the Combat Methamphetamine Epidemic Act of 2005 (CMA) - which expressly permitted such disclosure.

The trial court had then dismissed the lawsuit and the plaintiff appealed.

In its opinion, the Fourth District Court of Appeal affirmed the trial court's dismissal of the action, ruling that this was a case of common law "abatement" principles:

"In the present case, Congress has replaced California's prohibition against asking about a certain class of prior convictions with an express right to ask about those convictions, thereby effecting a partial repeal of the remedial statute that forms the basis for this action, and did so without any express saving clause.

"When a pending action seeks recovery based on a statutorily-based obligation, and that statutory provision is repealed by legislation not containing an express saving clause, the California courts have consistently concluded the pending actions should be abated.

"These principles convince us the CMA, by expressly authorizing Longs to ask applicants 'whether they have been convicted of any crime involving or related to . . . controlled substances,' and by conferring this privilege 'notwithstanding State law' has substituted a federal right in place of a state statute banning those questions...

"Because this partial repeal of California's statutory right was unaccompanied by any express saving clause, we conclude, under the line of cases represented by decisions like Hamm, Rossi and Mann, the trial court correctly ruled common law principles of abatement compelled a judgment dismissing Rankin's action...

"We conclude... that [the job applicant's] pending action to enforce the repealed statutory remedy is abated, and therefore we affirm the trial court's judgment dismissing the action."

The case is Rankin v. Longs Drug Stores.

To read the full opinion,

      PLEASE CLICK HERE.