Filed 7/30/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
PEJMAN SABERIN,
Plaintiff and Appellant,
A174549
v.
ALATION, INC., (San Mateo County
Super. Ct. No. 24-CIV-03399)
Defendant and Respondent.
The growth in remote work spurred by the pandemic is well-
documented. We now confront one of the many issues created by that
growth: When do California’s employment laws protect remote workers who
are terminated by employers with their “principal offices” in California?
Plaintiff Pejman Saberin arbitrated claims against his former
employer, defendant Alation, Inc. (Alation). He alleged, among other things,
that Alation unlawfully terminated him based on an arrest that did not
result in a conviction, in violation of the Fair Employment and Housing Act
(FEHA; Gov. Code, § 12900 et seq.)1 section 12952 (Section 12952) and Labor
Code section 432.7.
In deciding what law governed Saberin’s claims, the arbitrator ruled
that these California statutes could not be applied extraterritorially because
Saberin had been working remotely from Utah and the decision to terminate
1 All further statutory references are to the Government Code unless
otherwise specified.
1
him was made in Illinois. The arbitrator issued an award in Alation’s favor
upon the parties’ stipulation that they could not identify any non-California
law allowing Saberin to pursue a cause of action for unlawful termination
based upon an arrest without conviction.
Saberin then petitioned the trial court to vacate the arbitration award.
He argued that the arbitrator’s extraterritoriality analysis was not “specific”
to Section 12952 or Labor Code section 432.7, and did not properly consider
the termination decision’s connections to California. The court denied the
petition, finding no basis for vacating the award. Saberin now appeals the
order denying his petition. We affirm because Saberin and his arrest had no
connection to California and because there is insufficient evidence that
Alation made the decision to terminate Saberin in California.
I. BACKGROUND
A. Complaint
Saberin filed a complaint against Alation in San Mateo County
Superior Court that included causes of action for violation of Section 12952
and Labor Code section 432.7. Section 12952, subdivision (a)(3)(A) provides,
subject to certain exceptions, that it is unlawful for an employer with five or
more employees to consider an “[a]rrest not followed by conviction” “while
conducting a conviction history background check in connection with any
application for employment.” And Labor Code section 432.7, subdivision
(a)(1) states, in relevant part, that an employer “also shall not seek from any
source whatsoever, or utilize, as a factor in determining any condition of
employment including . . . termination, . . . any record of arrest or detention
that did not result in conviction.”
The complaint alleged in substance as follows: Saberin was an
engineer employed by Alation, a data analysis and software corporation doing
2
business in California. Saberin lived in Utah and worked remotely for
Alation since September 2021. Saberin was arrested in Florida while
returning from a vacation in October 2023, and asked his sister to e-mail
Alation for additional time off. While the e-mail stated Saberin had been
injured in an accident, Alation learned of his arrest from its own research.
After Saberin was released from detention on or around October 24, 2023,
Alation informed him that his employment had been terminated. The
criminal case against Saberin was subsequently dismissed in March 2024.
The complaint asserted that Alation violated Section 12952 and Labor
Code section 432.7 by considering Saberin’s arrest (that did not result in a
conviction) in the decision to terminate him.
B. Arbitration Proceedings
The parties stipulated to stay the court proceedings and resolve their
dispute through binding arbitration. Saberin had signed two employment
documents with arbitration provisions: an Offer of Employment (Offer) and a
Proprietary Information and Inventions Assignment Agreement (Inventions
Agreement). The Offer did not contain any choice-of-law provision. The
Inventions Agreement included a general provision that the agreement was
“governed by the laws of the State of California,” as well as a specific clause
in the arbitration provision that any and all claims “ARISING OUT OF,
RELATING TO OR RESULTING FROM MY EMPLOYMENT WITH THE
COMPANY OR THE TERMINATION OF MY EMPLOYMENT WITH THE
COMPANY” would be subject to binding arbitration “PURSUANT TO
CALIFORNIA LAW.”
In the arbitration proceedings, the parties disagreed about what law
governed Saberin’s claims. Alation filed a motion arguing California law
could not be applied extraterritorially to Saberin’s claims. Citing Ward v.
3
United Airlines, Inc. (2020) 9 Cal.5th 732, 760 (Ward), Alation contended that
the applicable test for extraterritoriality was whether Saberin’s “ ‘principal
place of work [was] in California.’ ” And Saberin failed this test because he
worked remotely from his home in Utah during the two years before his
termination.
In support, Alation submitted declarations from its Vice President of
Global Customer Experience Daniel Rose and Senior Human Resources
Business Partner Liz Laber. Rose declared that he learned Saberin was
absent from work and discovered Saberin’s arrest via a public records search.
Rose further declared that he and Senior Vice President of Customer
Solutions Christos Mousouris, with “input” from Laber, “decided” that
Saberin should be terminated “because of his unapproved absence and his
dishonesty in communicating the reasons for that absence.” Rose and
Mousouris were in Illinois when they made the decision, even though
Mousouris normally worked from home in California at the time. Laber, who
noted that Alation was “headquarter[ed]” in California, similarly declared
that Rose and Mousouris made the decision to terminate Saberin with “input”
from her. Laber performed her work from California at the time.
Saberin opposed the motion on two alternative grounds: either
extraterritoriality need not be addressed given the choice-of-law provision in
the Inventions Agreement, or California law applied extraterritorially to
Saberin’s claims. Citing cases like Campbell v. Arco Marine, Inc. (1996) 42
Cal.App.4th 1850 (Campbell), Saberin argued that the applicable test for
extraterritoriality was whether the unlawful employer conduct occurred in
California, and that the test was satisfied here because Laber was “involved”
in the termination decision.
4
The arbitrator granted Alation’s motion. As a preliminary matter, the
arbitrator explained that the choice-of-law provision in the Inventions
Agreement did not “ultimately aid” the analysis. Even if the provision
applied to Saberin’s claims, he still had to overcome California’s presumption
against extraterritoriality.
The arbitrator concluded that Saberin failed to meet this burden under
either test advanced by the parties: Saberin had not worked in California
during any relevant period and was terminated “by decision makers making
that decision from a location outside of California.” In concluding that the
decision to terminate Saberin occurred outside of California, the arbitrator
described Saberin’s allegations as “overly general and non-specific.” The fact
that Laber provided “input” from California to the decision makers in Illinois
who had terminated Saberin was a “tenuous thread” that did not “warrant
application of California FEHA or . . . Labor Code.” The arbitrator reasoned
that applying California law to employees working exclusively from a foreign
jurisdiction and employment decisions with no connection to California
“would potentially lead to an absurd result not consistent with California’s
legitimate interests in protecting its citizens and others working within its
borders.”
The parties stipulated to entry of an arbitration award shortly
thereafter. The stipulation provided that Saberin was “unable to identify any
Utah, Federal or applicable non-California law that would allow [Saberin] to
pursue a cause of action for unlawful termination based upon an arrest
without conviction as alleged in this arbitration” and Alation was “not aware
of any such law.” The stipulation also recognized Saberin’s desire to
“promptly challenge” the arbitrator’s order. Pursuant to this stipulation, the
5
arbitrator entered an award in favor of Alation “such that Claimant Pejman
Saberin shall take nothing from Respondent Alation, Inc.”
C. Petition to Vacate Arbitration Award
Saberin petitioned to vacate the arbitration award pursuant to Code of
Civil Procedure section 1286.2. Subdivision (a)(4) of that section provides
that a trial court must vacate an arbitration award if it determines the
arbitrator “exceeded their powers and the award cannot be corrected without
affecting the merits of the decision upon the controversy submitted.”
Saberin argued that the arbitrator exceeded his powers here in ruling
that FEHA and the Labor Code did not apply to Saberin’s claims. Among
other things, Saberin contended that the arbitrator failed to conduct a
“specific” extraterritoriality analysis of Section 12952 and Labor Code section
432.7, the “statutes relating to the use of a conviction without an arrest as
the basis for denial of employment.” Saberin also argued that the arbitrator
erred in applying the test for extraterritoriality under Campbell. Saberin
reasoned that Laber’s “input” to the decision makers was enough to connect
his allegedly unlawful termination to California.
The trial court denied the petition. It explained that the arbitrator had
“considered the connections to California” and found them “insufficient to
support the application of FEHA protections” to Saberin’s claims. The court
concluded: “That was a correct application of the standard in Ward, and
[Saberin] has not demonstrated a violation of public policy or of a statutory
right.” Saberin timely appealed.
6
II. DISCUSSION
A. Appealability
Before turning to the merits of Saberin’s arguments on appeal, we
reject Alation’s two challenges to the appealability of the order denying the
petition to vacate the arbitration award.
First, Alation contends that even if the arbitrator made a legal error in
determining that FEHA and the Labor Code did not apply extraterritorially
to Saberin’s claims, that error could not justify vacating the award under
Code of Civil Procedure section 1286.2, subdivision (a)(4). We disagree.
“ ‘Because the decision to arbitrate grievances evinces the parties’
intent to bypass the judicial system and thus avoid potential delays at the
trial and appellate levels, arbitral finality is a core component of the parties’
agreement to submit to arbitration.’ ” (Richey v. AutoNation, Inc. (2015) 60
Cal.4th 909, 916.) To effectuate this intent for finality and because
arbitrators are “not ordinarily constrained to decide according to the rule of
law,” the “ ‘merits of the controversy between the parties’ ” are typically not
subject to judicial review. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1,
11 (Moncharsh).) “Thus, it is the general rule that, with narrow exceptions,
an arbitrator’s decision cannot be reviewed for errors of fact or law.” (Ibid.)
But “there may be some limited and exceptional circumstances justifying
judicial review of an arbitrator’s decision,” including when “granting finality
to an arbitrator’s decision would be inconsistent with the protection of a
party’s statutory rights.” (Id. at p. 32.)
The California Supreme Court has recognized such judicial review in
the context of FEHA claims subject to mandatory arbitration. (Pearson
Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 677 (Pearson).)
To ensure the vindication of rights under FEHA, enforced for the public
7
benefit and not waivable by agreement, judicial review must be “ ‘ “sufficient
to ensure the arbitrators comply with the requirements of the statute.” ’ ”
(Pearson, at p. 677.) In Pearson, our high court deemed such review
appropriate where an arbitrator’s legal error prevents employee plaintiffs
from obtaining a hearing on the merits of their FEHA claims. (Pearson, at
pp. 670, 680 [concluding arbitrator made clear legal error in determining
plaintiff’s claim was time-barred and trial court would not err in vacating
award under Code of Civil Procedure section 1286.2, subdivision (a)(4)].)
Here, as in Pearson, the arbitrator’s ruling deprived Saberin of a
hearing on the merits of his FEHA and Labor Code claims.2 Indeed, the
parties stipulated to entry of an arbitration award after this ruling because
they could not identify any non-California law that would allow Saberin to
pursue a cause of action for unlawful termination based upon an arrest
without conviction. Under these circumstances, we conclude that judicial
review of the arbitrator’s decision is justified. (Moncharsh, supra, 3 Cal.4th
at p. 11.)
Alation does not offer any persuasive authority to the contrary. For
example, it cites SingerLewak LLP v. Gantman (2015) 241 Cal.App.4th 610,
624, which involves the arbitration of a dispute over a noncompete
agreement. The former partner of an accounting firm argued that he was
2 For the purpose of reaching Saberin’s arguments regarding Labor
Code section 432.7, we assume, without deciding, that judicial review is
similarly available to protect a party’s rights under this statute and avoid
deprivation of a hearing on the merits of the claim. (See Doe v. Department of
Motor Vehicles (2024) 102 Cal.App.5th 1004, 1018 (Doe) [describing Labor
Code section 432.7 protections]; Garcia-Brower v. Premier Automotive
Imports of CA, LLC (2020) 55 Cal.App.5th 961, 972 (Garcia-Brower) [“Section
432.7, subdivision (a) was enacted to serve the important public policy of
removing employment barriers for those who have committed crimes that
have been expunged by the courts”].)
8
not subject to the agreement and it was not enforceable under California
law. (Id. at p. 614.) After the arbitrator determined otherwise, the former
partner sought to vacate the award. (Id. at p. 615.) The Court of Appeal
concluded that judicial review was not appropriate because any legal error
by the arbitrator did not deprive the former partner of a hearing on the
merits of his claim. (Id. at p. 624.) Not so here.
Alation also relies on cases that do not involve arbitration at all.
(Campbell, supra, 42 Cal.App.4th at p. 1855 [addressing extraterritorial
application of FEHA in state court action]; Hill v. Workday, Inc. (2025) 773
F.Supp.3d 779, 797 [addressing exterritorial application of FEHA in federal
court action].) Neither case supports Alation’s position that the arbitrator’s
ruling cannot be subject to judicial review here.
Second, Alation argues that Saberin waived any challenge under Code
of Civil Procedure section 1286.2, subdivision (a)(4) because he agreed to the
arbitrator’s resolution of the governing law dispute and failed to argue that a
resolution against him would exceed the arbitrator’s powers. Moncharsh
does not support this argument. The former employee in that arbitration
claimed that a provision of his employment agreement was illegal and
violated public policy. (Moncharsh, supra, 3 Cal.4th at p. 7.) The California
Supreme Court explained that, consistent with the purpose of arbitration to
finally decide a dispute between the parties, the claim of illegality would
have been waived for any future judicial review if the employee had failed to
raise it before the arbitrator. (Id. at p. 31.)
Nothing in Moncharsh suggests that a party waives any challenge to an
award under Code of Civil Procedure section 1286.2, subdivision (a)(4) by
simply agreeing to arbitrate a dispute. On the contrary, it highlights the
importance of the statutory provision in balancing the “risk to the parties of
9
an arbitrator’s erroneous decision” with the benefits of arbitration.
(Moncharsh, supra, 3 Cal.4th at p. 13.) Similarly, Alation’s other authorities
are not on point. (Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790,
829 [defendants forfeited issue by withdrawing from arbitration]; Cummings
v. Future Nissan (2005) 128 Cal.App.4th 321, 328 [plaintiff forfeited
argument that arbitration clause was unconscionable by failing to raise it at
arbitration].)
Nor are we persuaded that Saberin was required to make a specific
objection during arbitration that a ruling against him on the governing law
motion would exceed the arbitrator’s powers. The California Supreme Court
has explained that waiver promotes finality in arbitration and discourages
“a level of ‘procedural gamesmanship’ that we have condemned as
‘undermining the advantages of arbitration’ ” and wasting “arbitral and
judicial time and resources.” (Moncharsh, supra, 3 Cal.4th at p. 30.) But
Saberin did present to the arbitrator his arguments that California law
governed his claims. And he reiterated those arguments in his petition to
vacate the award under Code of Civil Procedure section 1286.2, subdivision
(a)(4), contending that the arbitrator “exceed[ed] his powers” in concluding
otherwise. Alation does not explain how the lack of a specific Code of Civil
Procedure section 1286.2, subdivision (a)(4) objection at the arbitration
violated any principle justifying waiver here.
We turn, then, to the merits of the appeal. Applying de novo review
(Haworth v. Superior Court (2010) 50 Cal.4th 372, 383), we address
Saberin’s arguments regarding the choice-of-law provision in the Inventions
Agreement and the exterritorial application of FEHA and Labor Code
section 432.7 and reject them.
10
B. Choice-of-Law Provision
Saberin argues that the award must be vacated because the arbitrator
“punted” the determination of whether the choice-of-law provision in the
Inventions Agreement applied to Saberin’s claims. He further contends that
the extraterritorial application of a statute “has no weight on whether
California law applies to [this] case.” We disagree.
“[A] contractual choice of law provision that incorporates California law
presumably incorporates all of California law—including California’s
presumption against extraterritorial application of its law.” (O’Connor v.
Uber Technologies, Inc. (2014) 58 F.Supp.3d 989, 1005 (O’Connor).)
Accordingly, the choice-of-law provision “does not overcome the presumption
against [extraterritorial] application of California law absent an indication
that such a presumption does not apply.” (Ibid., italics added.) The relevant
question, therefore, is whether our Legislature intended to give the statute
extraterritorial effect. (Id., at pp. 1005–1006; see also Ward, supra, 9 Cal.5th
at p. 749.)
In answering that question, federal courts have declined to apply
certain California statutes extraterritorially despite the parties’ choice-of-law
provision. (E.g., O’Connor, supra, 58 F.Supp.3d at pp. 1005–1006 [concluding
Labor Code sections 351 and 2802 did not apply extraterritorially to plaintiffs
working in other states despite California choice-of-law provision in operating
agreement]; Cotter v. Lyft, Inc. (2014) 60 F.Supp.3d 1059, 1062, 1064–1066
[concluding contractual California choice-of-law provision did not extend
reach of wage and hours laws that do not apply extraterritorially to people
performing work exclusively in other states].)
1-800-Got Junk? LLC v. Superior Court (2010) 189 Cal.App.4th 500 is
inapposite. In that case, the plaintiff sought to enforce a Washington choice-
11
of-law provision in a franchise agreement and alleged a violation of
Washington state law. (Id. at pp. 506–507.) The Court of Appeal held that
the provision was enforceable, as it was “reasonable for a franchisor to
designate a single state’s law to apply to all of its franchise agreements” and
Washington was the closest United States jurisdiction to the defendant’s
headquarters in Vancouver, Canada. (Id. at p. 514.) The court had no
occasion to consider California’s presumption against extraterritorial
application of its own law.
Setting aside the choice-of-law provision in the Inventions Agreement,
Saberin argues that California law still applies to his claims pursuant to the
general principle that a forum “ ‘ “will apply its own rule of decision unless a
party litigant timely invokes the law of a foreign state.” ’ ” (Washington
Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 919.) But again,
California law includes the presumption that its law is intended to apply only
within its borders. (Ward, supra, 9 Cal.5th at p. 749.) The arbitrator did not
err in ruling that, even if the choice-of-law provision in the Inventions
Agreement applied to Saberin’s claims, he still had to overcome this
presumption. We thus turn to the parties’ arguments on extraterritoriality.
C. Extraterritoriality
Saberin argues that the arbitration award must be vacated because the
arbitrator made an error of law in ruling that FEHA and the Labor Code
could not be applied extraterritorially to Saberin’s claims. We disagree.
Ward provides the framework for our extraterritoriality analysis here.
In that case, flight crew members alleged that the airline’s wage statements
failed to provide all of the information required by Labor Code section 226.
(Ward, supra, 9 Cal.5th at p. 741.) The Ninth Circuit asked the California
Supreme Court to resolve whether Labor Code section 226 applied to
12
employees who reside in California but perform most of their work in
airspace outside of the state. (Ward, at pp. 742–743.)
Resolving this issue, our high court held that it is “not sufficient to ask
whether the relevant law was intended to operate extraterritorially or
instead only intraterritorially.” (Ward, supra, 9 Cal.5th at p. 752.) Instead,
the “better question is what kinds of California connections will suffice to
trigger the relevant provisions of California law.” (Ibid.) Importantly, “the
connections that suffice for purposes of one statute may not necessarily
suffice for another.” (Ibid.) As the court explained: “There is no single, all-
purpose answer to the question of when state law will apply to an interstate
employment relationship or set of transactions. As is true of statutory
interpretation generally, each law must be considered on its own terms.”
(Ibid.)
Our high court therefore looked first to the plain language of Labor
Code section 226 and determined that there was no text specifying its
intended geographic scope. (Ward, supra, 9 Cal.5th at p. 752.) It then turned
to the statute’s “aims and its role in the surrounding statutory scheme,”
explaining that Labor Code section 226 is “part of a matrix of laws intended
to ensure workers are correctly and adequately compensated for their work.”
(Ward, at pp. 752–753.) Its core purpose is “ ‘to ensure an employer
“document[s] the basis of the employee compensation payments” to assist the
employee in determining whether he or she has been compensated properly’ ”
and appears to contemplate a “single” statement that provides an employee
with “comprehensive” wage information. (Ibid.) Moreover, the legislative
history of Labor Code section 226 shows “the measure was introduced at the
behest of railroad employees who, receiving checks that showed only the net
13
amount they were paid, had no way to verify whether this amount was
correct.” (Ward, at p. 755.)
Based on these indicators of legislative intent, the California Supreme
Court concluded that Labor Code section 226 applied to workers whose
“principal place of work is in California.” (Ward, supra, 9 Cal.5th at pp. 754,
761.) It explained that this includes employees who work “a majority of the
time in California,” as well as interstate transportation workers “whose work
is not primarily performed in any single state, if the worker has his or her
base of work operations in California.” (Id. at pp. 760–761.) The high court
reasoned that this test “supplies clarity and certainty for employers and
employees, while also appropriately balancing the Legislature’s weighty
interest in the protection of California workers, including interstate
transportation workers, with similarly weighty considerations of interstate
comity and avoidance of conflicts of laws.” (Id. at p. 756.)
In adopting this test, our high court rejected an alternative proposal to
apply Labor Code section 226 whenever the “ ‘conduct which gives rise to
liability . . . occurs in California.’ ” (Ward, supra, 9 Cal.5th at pp. 759–760.)
It rejected that proposal as “hopelessly indeterminate when applied to [Labor
Code] section 226 and similar wage and hour protections.” (Id. at p. 760.)
The court explained it was unclear whether liability under Labor Code
section 226 was based on preparation of the statement, receipt of the
statement, or the decision on the content in the statement, which could occur
in three different states. (Ward, at p. 760.)
The central lesson from Ward is that California courts must engage in
a statute-specific analysis to determine the geographic scope of a state
statute. (Ward, supra, 9 Cal.5th at p. 752.) Saberin’s petition to vacate the
award acknowledged this, arguing that the arbitrator failed to conduct a
14
“specific” analysis of Section 12952 and Labor Code section 432.7, the
“statutes relating to the use of a conviction without an arrest as the basis for
denial of employment.” But the parties’ appellate briefing offers no analysis
of the text, surrounding statutory scheme, or legislative history of either
Section 12952 or Labor Code section 432.7 to determine their reach.
Instead, Alation contends we should employ the “principal place of
work” test from Ward, while Saberin contends we should employ the
“wrongful conduct” test from Campbell. Both cases, however, involved the
extraterritoriality of different statutes. (Ward, supra, 9 Cal.5th at p. 741
[wage statement claims under Labor Code section 226]; Campbell, supra, 42
Cal.App.4th at p. 1854 [harassment claim under section 12940].) The parties’
appellate briefing also discusses various unpublished federal decisions
addressing other statutory provisions. (E.g., Tetrault v. Capital Group Cos.
Global (C.D.Cal., Jan. 17, 2024, No. 2:23-cv-5144-WLH-E) 2024 U.S. Dist.
LEXIS 9622, at pp. *7–*8 [FEHA national origin discrimination and
retaliation statutes and Labor Code section 1102.5]; English v. General
Dynamics Mission Systems, Inc. (C.D.Cal., May 8, 2019, No. EDCV 18-908
JGB (SHKx)) 2019 U.S. Dist. LEXIS 79025, at p. *2 [FEHA age, race, and
gender discrimination, harassment, and wrongful termination statutes and
Labor Code section 1102.5], affd. 808 Fed.Appx. 529; see also Stovall v. Align
Tech., Inc. (N.D.Cal., Mar. 28, 2022, No. 5:18-cv-07540-EJD) 2022 U.S. Dist.
LEXIS 55652, at p. *1 [section 12940]; Sims v. WorldPac, Inc. (N.D.Cal., Feb.
22, 2013, No. C 12-05275 JSW) 2013 U.S. Dist. LEXIS 24740, at p. *3 [same];
Roger-Vasselin v. Marriott Internat., Inc. (N.D.Cal., July 19, 2006, No. C04-
4027 TEH) 2006 U.S. Dist. LEXIS 52729, at pp. *2, *16 [section 12960].) We
do not consider these unpublished decisions persuasive and decline to adopt
15
any “test” without a specific analysis of the actual statutes at issue here, as
instructed by Ward.
Labor Code section 432.7 regulates “inquiries by employers into an
employee’s arrest record.” (Housing Authority v. Van de Kamp (1990) 223
Cal.App.3d 109, 115.) We see nothing in the language of the statute or
surrounding statutory scheme that indicates its intended geographic scope,
and the parties identify none. But the aims and purpose of the statute are
more helpful. Labor Code section 432.7 was enacted in 1975 to expand
existing law, which prohibited inquiry into arrest records on an initial
employment application but permitted “questions regarding arrest records in
the employment process following receipt of the initial application form.”
(Legis. Counsel’s Dig., Assem. Bill No. 255 (1975–1976 Reg. Sess.) Summary
Dig., p. 273.) The purpose of Labor Code section 432.7 is not only to protect
California workers from “ ‘the adverse impact on employment opportunities
of information concerning arrests where culpability cannot be proved’ ” (Doe,
supra, 102 Cal.App.5th at p. 1018), which Saberin correctly notes serves an
important public policy, but also to “ ‘prevent the misuse of criminal offender
records information’ ” by employers (Garcia-Brower, supra, 55 Cal.App.5th at
p. 972). Thus, the Legislature intended for the statute to cover both workers
and employer conduct in the state. Accordingly, we conclude that in order for
Labor Code section 432.7 to extend extraterritorially to non-California
workers, the unlawful conduct at issue must have a sufficient connection to
California. This appropriately balances the Legislature’s intent with what
Saberin describes as the “[c]onstitutional concerns underlying the
presumption against extraterritoriality,” namely interstate comity and
avoidance of conflicts of law. (Ward, supra, 9 Cal.5th at p. 756.)
16
We reach the same conclusion in analyzing Section 12952, which
regulates inquiries into the arrest record of an applicant for employment.
Again, the plain language of the provision and surrounding scheme do not
indicate its intended geographic scope. But when Section 12952 was enacted
in 2017, the Legislature made findings and declarations indicating it sought
to reduce “barriers to employment” for Californians with “an arrest or
conviction record that can significantly undermine their efforts to obtain
gainful employment” and to “prohibit[ ] private employers from inquiring into
an applicant’s record at the start of the hiring process.” (Stats. 2017, ch. 789,
§§ 1–2.) In so doing, the Legislature expressed its intent to reach both
applicants and employer conduct in the state.
Applying Section 12952 and Labor Code section 432.7 in this case
accomplishes neither intent.
Saberin and his arrest have no connection to California.3 Saberin lived
and worked remotely from Utah, not California. His “direct supervisor”
worked remotely from the state of Washington, not California. Finally,
Saberin was arrested in Florida, not California.
Saberin does not dispute this. Instead, he contends that Section 12952
and Labor Code section 432.7 should apply based solely on the connection
between Alation’s decision to terminate him and California. We agree that
the purportedly unlawful conduct here was Alation’s consideration of
Saberin’s arrest in deciding to terminate him. But the arbitrator correctly
reasoned that Rose and Mousouris made that decision from Illinois, rather
3 Thus, we need not decide whether Section 12952 or Labor Code
section 432.7 applies to California residents working remotely for employers
that have no offices in California and express no opinion as to that question.
17
than California, when they did so. And Rose, who worked remotely from
Utah, initially discovered Saberin’s arrest through a “public search.”4
Saberin counters that Laber provided a sufficient California connection
to the termination decision. We are not persuaded. Saberin contends Laber
was “presumably” in California when that decision was made. But the
arbitrator described such allegations as “overly general and non-specific.”
Saberin also contends that Laber’s “input” showed she was involved in the
termination decision. But again, the arbitrator found that too “tenuous” a
thread to extend the California statutes extraterritorially. Implicit in this
finding is that Laber’s “input” was not substantive in the decision to
terminate Saberin, and we defer to this factual finding. (Moncharsh, supra, 3
Cal.4th at p. 11.) Indeed, Laber’s “input” could have simply consisted of
providing Rose and Mousouris, the actual decision makers, with Saberin’s
employment history. Thus, it is readily apparent that an approach accepting
any non-substantive input in a termination decision as sufficient to trigger
extraterritoriality would be “hopelessly indeterminate” as applied to Section
12952 or Labor Code section 432.7. (Ward, supra, 9 Cal.5th at p. 760.)
Likewise, Laber’s communication of the termination decision to Saberin is
not enough. The unlawful conduct under Section 12952 and Labor Code
section 432.7 is the termination decision itself.
Saberin also argues that Mousouris provided a sufficient connection to
California because Mousouris worked remotely from his home there, even
though he was in Illinois at the time of the termination decision. Saberin
contends it would “ ‘defeat the purpose and reach of the FEHA’ ” to allow an
4 In his complaint, Saberin alleged that Laber told him that she
discovered his arrest. But the declarations of Laber and Rose stated
otherwise.
18
employer to shuttle California-based decisionmakers out of state to avoid
extraterritorial application of California law. But the case Saberin cites to
support its position involved an unlawful inquiry claim by California
residents applying for employment. (Fusco v. American Airlines (N.D.Cal.,
Apr. 9, 2003, Nos. C 00-1439 PHJ, C 00-2597 PJH, C 00-3842 PJH) 2003 U.S.
Dist. LEXIS 26483, at p. *5 (Fusco), affd. in part & revd. in part (9th Cir.
2005) 400 F.3d 702.) The federal court rejected the airline’s argument that
FEHA did not apply to the California residents because some of its
application process occurred out of state, as the airline could then shuttle
applicants out of state simply to avoid the law. (Fusco, at p. *10.) Here, it is
undisputed that Saberin was not a California resident and worked remotely
from Utah during the relevant time period. Moreover, we have no occasion to
consider whether the “shuttling” of decisionmakers out of state to avoid
Section 12952 or Labor Code section 432.7 would nonetheless raise sufficient
connections to California for extraterritorial application of the statutes.
There is nothing to suggest that this occurred here or that Alation’s making
of the termination decision in Illinois was anomalous in any way.5 Where, as
here, the employee has no connection to California, more is necessary to
justify the application of Section 12952 and Labor Code section 432.7.
Saberin does not offer any persuasive authority to the contrary.
Campbell is not on point because it involved a sexual harassment claim
under section 12940, and the Court of Appeal concluded that the alleged
harassment occurred in Washington and that any relationship with
California was “slight” because “no one in [the defendant’s California]
5 At oral argument, Saberin conceded that he did not challenge the
adequacy of the discovery permitted by the arbitrator.
19
headquarters participated in or ratified the conduct.” (Campbell, supra, 42
Cal.App.4th at pp. 1854, 1858.)
Saberin’s reliance on a FEHA regulation is also misplaced. That
regulation defines the term “Employer” and states: “Employees located
inside and outside of California are counted in determining whether
employers are covered under the Act. However, employees located outside of
California are not themselves covered by the protections of the Act if the
allegedly unlawful conduct did not occur in California, or the allegedly
unlawful conduct was not ratified by decision makers or participants in
unlawful conduct located in California.” (Cal. Code Regs., tit. 2, § 11008,
subd. (e)(1)(C).) Our holding today does not conflict with this regulation.
Contrary to Saberin’s assertion, there is nothing about Laber’s “input” to
Rose and Mousouris or her communication of the decision to terminate
Saberin that suggests Laber should be deemed a “participant[ ]” in the
termination decision or that she “ratified” the decision in a manner that
would support extraterritorial application of the statutes. (Ibid.) And as
explained above, Mousouris’ connection to California is insufficient to
establish that the wrongful conduct occurred in California. (See, ante, at pp.
18–19.)
In sum, we conclude the arbitrator did not make an error of law in
ruling that Section 12952 and Labor Code section 432.7 could not be applied
extraterritorially to Saberin’s claims.6 The trial court did not err in denying
Saberin’s petition to vacate the arbitration award.
6 Given this conclusion, we need not address Saberin’s argument that
the “remedy” for the arbitrator’s purported error is to deem the parties’
agreement to arbitrate unenforceable and return the action to state court.
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III. DISPOSITION
The order is affirmed. Alation is entitled to its costs on appeal.7 (Cal.
Rules of Court, rule 8.278(a)(1)–(2).)
CHOU, J.
WE CONCUR.
JACKSON, P. J.
BURNS, J.
7 We deny Alation’s request, made in its respondent’s brief, for an
award of its attorney fees incurred on appeal because Saberin’s “continued
pursuit of this matter is and was plainly frivolous.” (See Gov. Code, § 12965,
subd. (c)(6) [affording courts discretion to award reasonable attorney fees and
costs to prevailing defendant upon finding “the action was frivolous,
unreasonable, or groundless when brought, or the plaintiff continued to
litigate after it clearly became so”].) The request is procedurally improper
(see Cal. Rules of Court, rule 3.1702) and fails to persuade on the merits, as
Saberin’s extraterritoriality arguments maintained on appeal may not have
prevailed but were not “frivolous” under section 12965 (see Pollock v. Tri-
Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 949 [allowing
prevailing defendant to collect fees on a potentially meritorious FEHA suit
that ultimately did not succeed “would undercut the Legislature’s intent to
promote vigorous enforcement of our civil rights laws”]).
21
A174549/ Saberin v. Alation, Inc.
Trial Court: Superior Court of the County of San Mateo
Trial Judge: Nicole S. Healy
Counsel:
Lyon Law, Geoffrey C. Lyon for Plaintiff and Appellant.
O’Melveny & Myers, Eric Amdursky, Ryan Rutledge and
Kristin MacDonnell for Defendant and Respondent.
22