SACRAMENTO – Yesterday, an important labor bill authored by Assemblymember Sandré R. Swanson (D-Oakland) passed the California State Assembly.  The measure, Assembly Bill 3063, would allow individuals who have had their criminal convictions expunged, allowing them to compete on a level-playing field for employment without previously expunged convictions used against them for employment purposes.  AB 3063 is sponsored by the California Public Defenders' Association and passed the Assembly on a 42-30 vote.

"As a state, we have already established a policy whereby individuals who serve their time and successfully turn their lives around can have their records expunged," said Swanson.  "However, this 'expungement' is meaningless if such records can still be used against an individual for purposes of employment."

Since 1935, California law has provided a form of “expungement” for defendants who have successfully completed probation following a criminal conviction.  Since 1971, such relief has been available to other probationers when the court finds it would be in the interests of justice to grant such relief.  Since 1961, relief has been available to defendants convicted of misdemeanors and not placed on probation who have lived an honest and upright life thereafter.

However, a problem can arise when a potential private employer discovers the existence of the dismissed conviction and seek to enquire about it, despite the granting of an expungement.

Current law prohibits an employer from asking an applicant for employment to disclose information concerning an arrest that did not result in a conviction or information concerning participation in a pretrial or post-trial diversion program (Labor Code Section 432.7).  Current law also prohibits an employer from utilizing such information in employment-related decisions, including hiring, promotion or termination.

AB 3063 would also prohibit an employer from asking an applicant to disclose (or utilizing for employment-related decisions) information concerning a criminal conviction that was expunged.

Current regulations already provide some protection in this area, but are not always followed.  The California Code of Regulations has, since at least 1980, provided that it is unlawful for an employer to seek information regarding, “Any conviction for which the record has been judicially ordered sealed, expunged, or statutorily eradicated . . . .”  (Cal. Code Regs., § 7287.4, subd. (d)(1)(B).)

The purpose of AB 3063 is to codify the existing regulation by placing it into the Labor Code.  It would prohibit prospective employers from inquiring regarding convictions which have been expunged, to the same extent that such inquiry is now prohibited by the regulation.  There are circumstances under which an individual may have to disclose an expunged conviction to a prospective government employer.  In short, the purpose of this bill is to assure individuals whose good behavior and reformation results in an expungement that they will receive the full benefit of that expungement, which the law intends.

 “I firmly believe that Californians who make a mistake but turn their life around deserve a second chance,” Assemblymember Swanson noted.  "One of the biggest factors in an individual being successful at a second chance is being able to secure a job.  This cannot occur if an individual's expunged record is used against them for the rest of their life."

The bill next advances to the California State Senate.