Expungement- Do I have to tell?

An expungement provides that the court shall set aside the verdict of guilty and dismiss the accusations or information against the defendant; thereafter, the individual "shall be released from all penalties and disabilities" resulting from the offense of which he or she has been convicted. The statutes then lay out several exceptions for which the relief from disabilities does not apply.

One major dilemma after obtaining expungement of convictions is what to tell an employer. They often ask "have you ever been convicted of a criminal offense?" That question has now been favorably addressed by the Legislature. It is the law now. (Effective date January 1, 2014.)

Labor Code section 432.7 is amended to make it a crime for employers to ask about or utilize in employment decisions "expunged" convictions. The statute reads in relevant part:

"(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45 [juvenile misdemeanors sealing rights], and 1210.1 [Prop 36 non-violent drug possession] of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program [of one who has received such relief]."

Finally, effective July 1, 2014, AB 218 goes into effect. It says public employers cannot ask prospective employees about convictions until after getting initial information on the applicant's qualifications. If the applicant qualifies, then they may ask. This eliminates needless disclosures where the applicant isn't going to get the job anyway.

New Labor Code § 432.9 (Operative July 1, 2014) reads:

"(a) A state or local agency shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant, including any inquiry about conviction history on any employment application, until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position.

(b) This section shall not apply to a position for which a state or local agency is otherwise required by law to conduct a conviction history background check, to any position within a criminal justice agency, as that term is defined in Section 13101 of the Penal Code, or to any individual working on a temporary or permanent basis for a criminal justice agency on a contract basis or on loan from another governmental entity.

(c) This section shall not be construed to prevent a state or local agency from conducting a conviction history background check after complying with all of the provisions of subdivision (a)."