Can employers see expunged records in California?

New California laws confirm that expungement relief extends to the employment process. Ban-the-box legislation is also limiting when employers ask about criminal history.

In January, a new law went into effect that broadened the relief offered by a criminal record expungement in California. The new law prohibits employers from using an expunged conviction when making hiring decisions.

The law, known as SB530, amended California’s Labor Code 432.7 to prohibit employers (including public agencies and private corporations and individuals) from using the following records as factors in hiring decisions:

• An arrest that did not lead to a conviction
• Participation in a diversion program (either pretrial or post-trial)
• A conviction judicially dismissed, expunged or ordered sealed

The new statute confirms that the relief provided by an expungement extends to the hiring process.

In addition, consumer-reporting agency cannot provide an employer with conviction information dating back more than seven years in a background check. However, employers may still ask about older convictions and can directly request such older records from the state.

The law includes several exceptions including one for jobs that require the use of a firearm in the course of employment. Even with the exceptions, the law has greatly increased the value of a California expungement.

Ban-the-box legislation

On July 1, 2014, another measure went into effect statewide that limits when public sector employers can ask about criminal history. The measure, AB218, requires that a state or local agency employer first look at whether the job candidate meets minimum qualifications before asking about a criminal record. The change does not apply for some law enforcement jobs or positions working with children, the elderly and disabled.

San Francisco recently passed an even stricter ban-the-box law that went into effect on August 13, 2014. The measure bans private employers from asking conviction-related questions until after a first in-person interview or conditional offer of employment. The Board of Supervisors approved the ordinance unanimously.

Shortened waiting period for certificate of rehabilitation

In addition to the limits on what records employers may consider, SB530 also decreased the waiting period for a certificate of rehabilitation. The certificate of rehabilitation is helpful in showing that a person has turned his or her life around. It has the added weight of being a finding from the court that the person has been rehabilitated after a criminal conviction.

In the past, a person needed to wait at least seven years after receiving a discharge from probation, release on parole or custody to apply. The new law amended the California Penal Code to allow trial courts the ability to grant applications before seven years when it serves the interests of justice.

Penalties for employer violations

An intentional violation of the law is a misdemeanor offense with a fine up to $500. If a pattern emerges that certain employers routinely violate the law, state or city attorneys may bring lawsuits.

Clearing a criminal record might help you find a job, but also could be needed for employment licensing or immigration reasons. If you have questions about cleaning up your record, contact an experienced California expungement attorney who can explain your options.

When a person has finished probation, a suspended sentence, or actually served time incarcerated and is released, that person returns to society supposedly having paid their debt to society and ready to reintegrate into the world. However, it is soon apparent that a person’s criminal record…the record of arrest, conviction and sentencing…can have long term or even permanent effect on his or her future role. For some types of crime, such as those related to sexual predation, a person faces public exposure of his or her past as society attempts to reassure itself that the convicted felon will not be able to repeat the offense. But for almost any crime, the record can be determined by any investigation, and that can restrict the possible future of the released felon from access to employment to acceptance by landlords.

And many jobs now require a background check and release by the applicant to investigate the individual’s past records, including criminal records. Even a conviction from decades ago can alter the chances of success in landing a job.

Recognizing the drastic effect that such a record can have on a person’s future, the California Legislature does allow legal action to expunge the record so as to truly make the past crime a part of the past which will not ruin the future. The restrictions and procedures for such expungement are discussed in this article. The reader should first read our article on Criminal Law.

Basics of Expungement in California

Expungement is defined as the act of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges. Absent such expungement, the records of criminal charges remain accessible to law enforcement agencies and, in many circumstances, to the public at large.

Once expunged, such records cannot be accessed for general law enforcement or civil use. However, under certain exceptional situations, the expunged records can be searched, retrieved, and used, but this occurs only in exceptional circumstances which normally require a court order or statutory authorization.

The expungement pertains to a wide variety of records. Records in any court, correctional facility, law enforcement or criminal justice agency will be affected. Specifically, records regarding a person’s detection, apprehension, arrest, detention, trial or the disposition of an offense within the criminal justice system are selected for expungement. The effect of an expungement is that one’s criminal record of arrest and/or conviction is erased and legally deemed not to have occurred.

A person may have a criminal offense expunged when:

1. A defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation;

2. Or in any other case in which a court, in its discretion and the interests of justice, determines an expungement should be granted. Cal. Pen. Code §1203.4;

3. Further, a defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, may obtain expungement. Cal. Pen. Code §1203.4a;

4. A person who was under the age of 18 years at the time of commission of a misdemeanor and is eligible for, or has previously received, the relief provided by Section 1203.4 or 1203.4a, may petition the court for an order sealing the record of conviction and other official records in the case, including records of arrests resulting in the criminal proceeding and records relating to other offenses charged in the accusatory pleading, whether defendant was acquitted or charges were dismissed.

Expungement requires a court filing. An eligible person may petition the court for an order sealing the record of conviction and other official records in the case, including records of arrests resulting in the criminal proceeding and records relating to other offenses charged in the accusatory pleading.

Note that a person who petitions for an order sealing a record under this section may be required to reimburse the county for the actual cost of services rendered, whether or not the petition is granted. CA Penal Code §1203.4, et seq.

Practicalities

The Court does have discretion as to whether to expunge a record and most Courts will inquire closely as to the actions of the petitioner post conviction before granting the petition. The longer the petitioner has been “out of trouble” the better the chance for a successful petition. It is important to note the wide latitude given the Court in determining whether to grant the expungement. Indeed, as seen in Penal Code Section 1203.4, the Court can grant expungement, even if all criteria otherwise required are not met, if the Court determines that the interests of justice require it.

In the real world, absent some remarkable circumstance, the Court will not grant expungement minus close adherence to the above criteria or if there is any reason for the Court to conclude that expungement would somehow endanger society. Thus, a person just finishing probation for embezzlement who seeks expungement so he or she can seek a job in a financial institution will find a cold reception from the Court in most circumstances, but a college graduate who wishes a youthful indiscretion such as joyriding to be sealed should find no great difficulty in accomplishing that goal.

Despite the expungement, this writer remains convinced that various federal and state agencies are still able to access arrest and conviction records in certain circumstances. What expungement will do, however, is eliminate access to the civilian populace and make it far more difficult for the government to access such information and, in certain circumstances, impossible.

It will also allow a job applicant to deny a criminal record and be truthful since the record, legally, no longer exists. (There would be no point in expungement if such denial was not anticipated.)

It is thus a very useful act for those who qualify and normally can be completed in a two to three month period.

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