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Legal Update: Michael Crowe, Employment Discrimination, Fair Pay

April 18, 2012 1:09 p.m.

Guest: Daniel Eaton, San Diego attorney with Seltzer, Caplan, McMahon & Vitek

Related Story: Legal Update: Michael Crowe, Job Applications, Equal Pay


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

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CAVANAUGH: This is KPBS Midday Edition. I'm Maureen Cavanaugh. Several interesting legal questions are in the news here in San Diego. We thought we'd contact our one-time legal analyst, and great KPBS friend, Dan Eaton, to help us through them. It's good to see you, Dan.

EATON: Good to see you too, good afternoon.

CAVANAUGH: Our first case involves a tragic story that many San Diegans will remember. The murder of 12 year-old Escondido girl Stephanie Crowe in 1998. Her brother then 14 year-old Michael Crowe, and his two friends, were arrested and charged with her murder. Later DNA evidence led to the conviction of Richard Truitt for her death. 14 years later, Michael Crowe wants a court to declare him innocent. What is he actually asking the judge to do?

EATON: What he's asking for, Maureen, is a declaration of factual innocence of which is authorized under California law. What it would do is it would say, look, I am -- I want a finding from the Court to say that I never should have been arrested or charged for this crime in the first place. If he succeeds in what he is seeking, the records ultimately would be destroyed of his arrest and charge in connection with this horrible crime.

CAVANAUGH: One might say you know he's innocent already, somebody else was found guilty, and I'm wondering what this might do for him. Why would he want that purged?

EATON: This name-clearing process would be important for the purposes of, for example, background investigations. Because even though the charges were appropriately dismissed against Mr. Crowe, the fact is those records still exist in law enforcement files and will come up if a background investigation for example for a job is done on Michael Crowe. This would actually require the state and local law enforcement agencies actually to destroy all records. So they wouldn't even come up in a background investigation.

CAVANAUGH: Now, how often is a declaration of innocence given by courts in California?

EATON: I don't practice criminal law, so I posed that question to a friend of mine, Michael Crowley who has been practicing criminal defense law for 25 years, and is a former president of the San Diego criminal defense bar association. And he told me they are very, very rare. In fact, he said, in his 25 years of practice, he has only obtained a declaration of factual innocence once. And it's interesting, the case in which he obtained it, it was obtain forward a cop who had been connected to the Rodney king beating some years ago. The problem was, or the benefit for his client was that the videotape actually exonerated his client. So ultimately, like this motion that Mr. Crowe is seeking, the motion that Mr. Crowley sought was unopposed. But that was only one that he obtained in 25 years of practicing law, and that's because the standard to get these kinds of findings are so tough.

CAVANAUGH: Yes, what sort of standard does Michael Crowe have to meet in order to have that finding of factual innocence?

EATON: Under the law, and under a California Supreme Court decision about ten years ago, what he will have to show is that "no reasonable cause exists to believe that" that he committed the crime at all. He'll have to show that he never should have been arrested in the first place. If there's any reasonable cause to believe that he committed the offense to which he was charged, he's not entitled to that showing of factual innocence. Remember to escape a conviction, the -- to get a conviction, the prosecution has to show that a defendant is guilty beyond a reasonable doubt. Well, reasonable doubt is a lot easier to show, although it's not the defendant's burden, but it's a lot easier to show than to show that I never should have been arrested at all in connection with this crime. So it's a pretty tough standard, and you got to produce evidence to get such a finding, even if it's unopposed as it is in this case.

CAVANAUGH: And of course in this case, infamously Michael Crowe confessed to the crime, giving new substance to the argument. But given that standard you just read out, that confession, will it factor into the judge's decision?

EATON: That's bound to come up. But it'll certainly be an issue. I did some research this morning and couldn't find any case that addressed this topic. But that'll come up. We're expecting to see a 2-day hearing, and all of that will come up. But the fact is, Mr. Crowe did not commit this horrible offense, and what he is seeking to do through this proceeding is to get his name cleared.

CAVANAUGH: When we think of court, there's an adversarial hearing, is this just Mike will Crowe and his attorneys presenting this to a judge?

EATON: Crowe's attorney will still have to prove up this matter, he will still have to submit and show evidence that in fact there is no reasonable cause to believe that Mr. Crowe committed this offense. And if he succeeds in doing that, are the judge so will issue the declaration of factual innocence that there Crowe is seeking.

CAVANAUGH: And the next hearing is?

EATON: April†26th. It was supposed to be this week. But it'll be two days, I think that's next Thursday, presumably Thursday and Friday of next week. And tell be fascinating to watch.

CAVANAUGH: Our next case is on pending legislation in Sacramento. It's about want-ads that say they only want people who are currently employed to apply for the position. It's AB Bill 1450, and it would make that request illegal. That's the rationale behind this?

EATON: That according to its sponsor, Michael Allen of Sonoma county, we're facing 2 million unemployed Californians, and this bill is designed to remove this stigma, designed to remove the ability of employers and employment agencies from categorically excluding the unemployed from consideration, in effect saying no unemployed need apply.

CAVANAUGH: So what does it actually say about how these want-ads would be, and asking for current employment during a job application? Does it restrict that as well?

EATON: According to the sponsor, Michael Allen, I saw an interview with him on the assembly's website, and he said no, employers would still be able to look at an applicant's employment history, but what an employer or employment agency could not do is use unemployment, past or current as a screening mechanism to bar all unemployed people, past or present from applying from the job. In other words, they ought to have a shot to make their case that they will worthy to be considered for the job that is posted.

CAVANAUGH: Now, you do practice employment law. Which would an employer place such a want-ad or question someone about whether they're employed or not during an interview?

EATON: The thinking is whether are unemployed reflects in some ways your job worthiness, your ability to compete in the job market and stay employed, and also reflects whether you are current on the skills that are necessary to perform the particular job. Of the thinking is if you've been out of the job market, depending on the nature of the job, maybe your skills or your connections, if it's a steals job, can Atrophy. And therefore we really don't want someone like that. We want someone succeeding in the job we want them to hold. And also employers like to have a lot of freedom to select the people who will work for them. If they are -- if these people are not excluding people on the basis of clarifications such as because they are a woman or because they are disabled.

CAVANAUGH: Those are the job categories that are protected.

EATON: Among others, that's right.

CAVANAUGH: Yes. So would this then if this bill were to pass make -- would your employment status become a protected class?

EATON: Not in the same way, but in a sense is the key phrase that you used. In a sense, yes. It wouldn't protect it in the same way because as I said, the bill would still allow you to take into account the entire employment history. But it would not prevent an agency from categorically screening. And you couldn't sue personally if you were -- if you didn't get a job interview or a job because you were unemployed. Instead, an action under this proposal would have to be brought to the California attorney general's office or the city attorney in the city in which you live.

MAUREEN CAVANAUGH: And they're talking about a fine?

EATON: Of a lot of money, actually. It starts at $1,000, goes up to $5,000, and then $10,000 for each subsequent offense. The question is whether you ought to put this additional burden on hiring from the employer's perspective as a time when hiring is tough enough. And the thinking is if you add this burden, this new regulation, it's going to slow the hiring process and slow the process ironically of getting cal calans back to work.

CAVANAUGH: Do any other states have laws like this?

EATON: New Jersey has one, and then the District of Columbia also has a law that prohibits this: But that's it. The other states, you can take that into account, and you can put ads up along the lines that you have just discussed. A close reading of the statue allows employers to restrict jobs to those who are currently employed by that employer itself. In other words, they can say we want to promote from within. That's perfectly okay. But if you're talking about screening out everyone in the outside world who is unemployed, that would not be allowed under this proposal. And it's important to realize it has not yet been enacted. It is very much pending.

CAVANAUGH: But I read some of the comments about this legislation in some of the articles, and the feeling among people seems to be that it's absurd to run a want-ad only for people who are only employed, especially considering the high unemployment that we here have in California.

EATON: That's right, Maureen. The thinking is, are well, okay, if current unemployment as a screening mechanism made sense, maybe not so much right now. Because so many people for so many reasons are unemployed, and to force them on the sidelines has this effect of making it that much harder to get back to in the game. That said, not all employers use this mechanism. The thinking from Mr. Allen is that no employer should be able to do. Particularly one of the questions that was raised is we've got a lot of returning service members, men and women who performed so admirably for us in the actions that have gone going on abroad, are and the question is, well, they're unemployed sort of too. And the question is whether this would protect them. In a sense, it would. Say between being in the military and coming back, they don't have a job, this would apply to them. But it wasn't motivated by them or targeted at them.

CAVANAUGH: I read a lot about a potential chilling effect that this might have on employers.

EATON: The chilling effect is that it could say, well, are maybe we don't hire at all. Maybe what we do is we actually make our existing staff do more work. And also maybe we don't ask people in interviews about their employment history at all. Do we ask them whether they were unemployed and whether they were unemployed or is that later going to be used against us in some sort of an enforcement action? It is going to change the dynamic of the interview, screening, and hiring process, if this measure is enacted. No question.

CAVANAUGH: And it's winding its way through Sacramento but it is still a proposed bill in California.

EATON: Ironic if the economy completely turned if the time by it's enacted?


CAVANAUGH: Let me move on to equal payday. It was yesterday. The news was that in California, women are paid just $0.84 for every dollar that men receive. What is the law in this state about equal pay?

EATON: Well, of course, understand that the equal payday celebrated the equal pay act that California has a similar provision, and basically it prohibits employers from discriminating on the basis of gender for compensation. And other clarifications are included with respect to compensation. But you can't pay people who are of different genders for doing the same job different wages. But all other things are rarely equal. So it makes these comparisons very, very ditch cult.

CAVANAUGH: It does indeed. It makes me think if we have laws like this, why are women still making $0.84 for every dollar that men are? Is it because people don't know what their coworkers make?

EATON: There may be that. It may be that depending on how the statistics are done that inadequate consideration is being given in doing those statistics on experience, length of tenure, whether they have particular skills and so forth. A lot of the things thatR difficult to measure are not factored into that statistic that you mentioned. So there's a question about whether that takes into account all of the variables that go into deciding how much someone is paid.

CAVANAUGH: If a woman believes she is being denied equal pay on the job in California, what can she do?

EATON: The old saying is to hammer every problem as a nail. So a lawyer is going to tell you what the legal avenues are initially. But the initial approach ought to be the employer. If somebody does come across information that they are paid, whether a man or a woman, discrimination against men does happen, they ought to bring it to the attention of the employer and ask for some sort of adjustment. Only then should they look at exploring the possibility of filing a complaint with the discrimination agencies, either the department of fair employment and housing in California or the equal opportunity commission. But the initial approach ought to be to the employer.

CAVANAUGH: To try to just drop a word?

EATON: It would probably be more than a word in this economy because employers are certainly trying to save money.
CAVANAUGH: Thank you very much

EATON: Sure, it's great talking to you again, Maureen.