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California "Expungement" ramifications regarding criminal background checks and state licensing?

Sacramento, CA |

http://www.youtube.com/watch?v=uMPeTqx2IvM
This video describes California expungement. Specifically, from 1:40-2:15 on the video, is what she is saying accurate? For example, if you go into Nursing, I realize you must disclose EVERY conviction when taking the state test for a license. However, if you've overcome that obstacle and you are granted a license, is it true when going to apply for jobs at hospitals that you no longer need to disclose your expunged crimes? Also, if you do in fact have to disclose those crimes, is it true they CANNOT discriminate against you due to the crime being expunged and employers only allowed to discriminate based on CONVICTIONS?

Also, for places that use Live Scan, even if your EXPUNGED criminal record shows up, they still CANNOT discriminate against you for something that is dismissed via P.C. 1203.4 correct?

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Attorney answers 6

Posted

California "expungement" is pursuant to PC 1203.4. The case is dismissed but the record is not deleted. I'm not familiar with which background check services most hospitals are using, but there is a good chance that the hospital will be aware of the criminal charges. I would also imagine that many hospitals will consider the fact that you were licensed after the event to be a good thing. Technically, most private employers can't use non-convictions against you, but it's unclear how effective this is in practice, when employers' background checks often show arrests and "expunged" cases.

Best,

Nicholas M. Loncar, Esq.
t: 323.803.4352 | f: 323.617.3838
www.iDefendLosAngeles.com
Nicholas.Loncar@iDefendLosAngeles.com
Sunset Law Building | 1295 W Sunset Blvd
Los Angeles, CA | 90027

Asker

Posted

Only "private" employers cannot use non-convictions? I thought every employer, excluding State Licensing Agencies, California Lottery, and Federal jobs, were NOT allowed to discriminate against me based on expunged crimes?

Posted

A 1203.4 dismissal (which is not an expungment) will follow you around in your application for nursing jobs. If you don't understand why reread the statute or seek a consultation with an attorney.

Asker

Posted

So then, the video link I posted is inaccurate, correct? I was under the impression from reading the statute that only the California Lottery Commission, Federal Jobs, and State Licensing agencies can discriminate against you based on expunged convictions? Maybe I'm reading the incorrect statute; could you please inform me of the P.C. in which you're referring to?

Posted

These are good questions for a labor / employment / licensing attorney. Good luck.

www.YourCriminalDefenseLawyer.com
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The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.

Posted

I disagree with most of her video. If you want to know what a petition filed pursuant to Penal Code section 1203.4, will do, I suggest you take it form the horse's mouth. See: http://www.courts.ca.gov/1070.htm

DISCLAIMER The materials appearing on this website are provided for informational use only, and are in no way intended to constitute legal advice. Transmission or receipt of any information from this, or any, website does not create an attorney-client relationship, and you should not act or rely upon any information appearing on this website without seeking the advice of an attorney. The law is constantly changing, the materials appearing on this website are not guaranteed to be up-to-date. The application of law is dependent on the facts of each case, and no two cases are ever similar. It is important that users of this site realize that it is risky to assume that their case is identical to someone else's, without consulting with an attorney.

Posted

Consumers and applicants for employment typically do not initially grasp that there can be a significant difference between (1) an arrest and (2) objectionable conduct, which may underlie an arrest.

Imagine if your last employer told a prospective employer that you embezzled from your previous place of employment. Imagine further that you were arrested for that embezzlement, but that a bad search or bad interrogation caused the prosecutor to decide not to bring charges in court. Surely you can understand that the prospective employer will refuse you a position of employment -- not because of the arrest without conviction -- no one cares about that -- but because of the conduct reported against you.

An arrest that does not result in conviction does not insulate you from rejection (as you call it, "discrimination") based on your conduct or allegations about your conduct. An arrest not resulting on conviction cannot make you bulletproof for the underlying actions.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

Asker

Posted

So basically, you can be "discriminated" against based solely on the testimony of the past employer, rather than the non-conviction? If, for example in my case (I have no previous employment history), it was simply bad judgement on my part for breaking the law and I am at fault; but I have an expungement for my crime, there is no hearsay from any past employers, there was simply the routine police arrest/report/sentencing, then I wouldn't have anything to worry about correct? Because there is no previous employer, they cannot make any statements, and thus I cannot be "discriminated" against when applying for jobs, correct? By the way, thank you for answering my questions Ms.McCall. I have posted questions before and your answers have always been more helpful than most.

Christine C McCall

Christine C McCall

Posted

Most of the analysis you are seeking confirmation for here is NOT correct. The source of the information about the bad conduct is beside the point. I offered as an example a hypothetical featuring a former employer. It could have been a neighbor, or a stranger who made a report to the police,instead of a former employer. It could be an ex-spouse. It can be anyone or any kind of source -- a newspaper story, an internet post, a rumor in a small town. What is critical is not the source of the info, or the nature or character of the source, but that prospective employers have the legal right to base employment decisions on info about you that reflects badly on your character, judgment, maturity, ethics, etc. -- and the fact that no conviction occurred does not diminish or negate that right. Moving further into this issue, a 1203.4 petition allows you to deny a conviction; it prevents a prospective employer from making a decision based on the dismissed conviction. It does NOT prevent the employer from making a decision based on the bad conduct underlying the conviction. Yes, this is arbitrary, unfair, and a whole lot less than folks generally think they are getting when they go to court for "expungement."

Asker

Posted

Okay, I understand what you are saying and in your example.. However, I just read the labor code statute and it states: 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 or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program. Source: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=00001-01000&file=430-435 Isn't this statute making it ILLEGAL to be biased based on ANY source (i.e. a newspaper story, an internet post, a rumor in a small town)? I understand that it is not the "conviction/non-conviction" but rather the "character" of person you are, however my understanding of the statute is that if there was no conviction, then whatever accusations or newspaper articles based on that "non-conviction" CANNOT be used to determine anything in ANY way, including someone's character. Am I misunderstanding the statute in some way?

Christine C McCall

Christine C McCall

Posted

Yes, you are misunderstanding. But I have tried my best to explain and have nothing more to offer.

Christine C McCall

Christine C McCall

Posted

I had intended to post these additional remarks for both you and for attorney Higbe in response to your other post about his video, but Avvo has removed that post, apparently because of the content of the video, so this comment will have to serve. CA Labor Code enacts a very narrow (and virtually useless and unnecessary) prohibition: the prospective employer may not utilize any RECORD OF ARREST THAT DID NOT RESULT IN CONVICTION. This is a very specific and narrowly limited statutory provision and it cannot be generalized or conflated -- as you have tried -- to "whatever accusations or newspaper articles based on that "non-conviction" CANNOT be used to determine anything in ANY way, including someone's character. " Nonsense. The Labor Code prohibits nothing more than an employer's use of RECORDS of an arrest that did not result in conviction. If there was newspaper story, a report from a current employee, a rumor in town, a blurt-out statement from you --- ANYTHING OTHER THAN AN ARREST RECORD or A RECORD ABOUT AN ARREST -- the employer may lawfully use and rely on it. Even if it is not true, without any additional investigation, and without any notice to the applicant for employment. Let's take an easy example, we'll call him "JO." JO got arrested for a very violent crime and it was covered endlessly all over the media for months. By your standards, JO could not be denied employment while that matter was pending, unless and until that arrest resulted in conviction. Be serious! This is not the state of the law. The case may pend for many years -- forever if it is an alleged murder -- and employers are not required to set aside what they have learned or what they think of the applicant or what they think they know from sources other than than arrest record. They are free to believe any reports or information or allegations of bad conduct by JO and to refuse to take him into their circle of employees. There is nothing in the law that forces any prohibition of employer knowledge and judgment so long as it is based on sources other than that single prohibition specified by the statute, and so long as the info that they are basing the decision on is not the mere fact of the arrest. It is worth knowing that the Labor Code prohibition that you have cited is virtually worthless for applicants for employment. First, employers of any size and sophistication and the commercial vendors that serve their information needs have long since fashioned end-arounds that are so successful that the LC merits not even a passing consideration. The employer orders a certain level or degree of information retrieval from the vendor. There is no explicit request for any specific info, certainly nothing that could be argued to be prohibited by the law of any state. There is simply no need (or opportunity) for that kind of specific instruction to the vendor by the prospective employer. The vendor provides the information retrieved to the employer via a "protocol" that carefully and specifically insulates the requestor employer from the source of the info and any arguably improper purpose. Much of the data provided is from the public record. The Labor Code does not --- cannot -- prohibit the publication or circulation of public record info. Most of the information retrieval vendors are out of state and have been for many years. Many are now off-shore. They are not subject to CA Labor Code. They protect their requestor clients very ably from allegations of improper requests or improper use of the data provided. In more than 20 years advising employers, I have never had a single employer client faced with ANY legal challenge or jeopardy over this LC statute. Not once. Nor have the misdemeanor provisions of this all-but-moribund statute been exercised in years, perhaps decades.

Asker

Posted

@Ms.McCall: I understand what you are saying. Basically, there are ways around the statute. If what you're saying is true, then there is no point in expunging a crime because expunged or not, it's the same result, correct? @Mr.Higbee: Feel free to respond.

Christine C McCall

Christine C McCall

Posted

There are a number of benefits to an Order under PC1203.4. Just because the statute does not deliver everything that you thought it might, or everything that you would like, does not make it without value. I am signing off in this debate, which was never intended as a debate in the first instance. I don't presently accept these kinds of legal matters in my law firm practice, so I have no dog in this fight. Take what advice and information may be useful or sensible to you, and leave the rest. This extraordinary degree of effort for you was prompted by the significant degree of misinformation that you were laboring under. That circumstance has been sufficiently addressed. I strongly suggest that you retain legal counsel -- Mr. H or anyone else who is willing -- and obtain situation-specific legal advice that will meet and advance your objectives to the maximum degree possible. The limitations and risks of attempting to reach specific legal conclusions by the Q and A mode required by this forum are more significant than you may realize.

Asker

Posted

Okay, thank you very much for your time and advice Ms.McCall. It is very much appreciated.

Posted

Ms. McCall and Mr. Kaman have responded in full to your question. Expungments arenot erasers to your life or record for all purposes.

Andrew Roberts (818) 597-0633/ (805) 496-7777

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