THE CASE OF THE CARELESS WHISPER

Based on Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4^th 1363

[It is March 27, 2000 at 9:30 a.m.Shelly Santillan, the general manager of a Wilsons leather goods store in San Diego, is at her desk doing paperwork.She is only one on stage during the skit.The other characters remain at their desks in class.The phone rings.]

Shelly:Shelly, here.

Marie:Hi, Shelly.It's Marie from the Fashion Valley store.I just wanted to let you know you'd be receiving an employment reference check sometime this morning for an employee who used to work at my store.I know you handle all of those kinds of inquiries for the company.

Shelly:Right.OK.What's the name of the former employee?

Marie:Anthony Thomason.

Shelly:Hold on.Let me bring him up on the computer.Oh yes, I see you fired him for loss prevention issues, meaning either he was stealing product or was letting others do so.

Marie:That's right.Just wanted to give you the heads-up.

Shelly:Thanks for calling.I'll be ready.

[Shelly hangs up and she continues working.It is now 10:00 a.m., 30 minutes later, and the phone rings.]

Shelly:Shelly, here.

Carol:Hello, Ms. Santillan.My name is Carol Richards and I'm calling from ChoicePoint investigative services.We're conducting a background check for our client GTE concerning a recently-hired employee named Brandon J. Noel who says he worked for Wilsons in 1999.

Shelly:Oh, yes.I was expecting your call.

Carol:We've already confirmed the dates of his employment, but need to confirm why his employment with Wilsons was terminated.

Shelly:According to his file, the former employee left because of loss prevention issues.

Carol:I see.And what is his rehire status?

Shelly:Unfavorable.

Carol:OK.That's all I needed.Thanks for your time.

[Shelly hangs up.]

Shelly [to herself]:Wait.Brandon Noel?I think that was the name of the employee Marie mentioned to me earlier this morning.Yes, I'm pretty sure it was.I mean, how many background checks could really come in in one morning?

[It is now April 28, 2008, a month later.Shelly's phone rings again.]

Shelly:Shelly, here.

Brandon:Shelly, it's Brandon Noel.I worked at the store for about two months last year.

Shelly:Yes, Brandon.I remember.What have you been up to?

Brandon:Well, I just started working for GTE a couple of weeks ago on a conditional basis.I just got a letter firing me.

Shelly:Sorry to hear that.But why are you calling me?Need a reference?

Brandon:I'm holding the termination letter and it includes a copy of a background investigative report - as required under California law -- from an outfit called ChoicePoint.I had written on my GTE application that, in response to a question about prior criminal convictions, in 1994, that I had been convicted of a felony, that it had been an aiding and abetting offense, and that I had not been fully involved.I also said I had been sent to youth authority.The investigative report shows that ChoicePoint found out from my criminal records that my conviction was for carjacking, three counts of attempted robbery, and a few other things.The record also says, correctly, that while I was originally sentenced to the youth authority, I was transferred to adult jail when I turned 19 and where I remained until I was released on parole.

Shelly:Sounds like you got busted for application fraud.

Brandon:I can't be sure that that was the reason I was fired.I admitted to the felony conviction, so the gist of what I said on my application was true.The investigative report also says that you told ChoicePoint I was fired from Wilsons for loss prevention issues and that I couldn't be rehired.But that isn't true.I quit because the hours didn't work.You know that.

Shelly:Yes, that's right.Wait a minute.[Almost to herself.]ChoicePoint, ChoicePoint.Why is that so familiar?[Now more to Brandon.]Oh no, Brandon, I think I know what happened.

Brandon:What?

Shelly:About a half hour before they called, a manager at another store told me that someone would be calling me about a background investigation of a different employee.I must have given ChoicePoint the information about that employee instead of about you.I feel awful.I'm so sorry.

Brandon:Wow.That's bad.I know your apology is sincere, Shelly.I never had a bad relationship with you or anyone else at Wilsons during the brief time I worked there.That's why this kind of hit me.

Shelly:I want to do anything I can to help you under the circumstances.I'll tell you what.Come back to work for us.

Brandon:Great. [Almost immediately]Oh, no, that wouldn't work.I'm about to move and the store is too far away.Man, that gig with GTE was really working out, too.

Shelly:That's too bad.Just let me know if there's anything I can do for you.

Brandon:I'm thinking you'll be hearing from me down the road. . .one way or the other.

[Shelly exits.]

What's the legal question?

Who do you agree with the employer or the employee why, explain. Who wins?