Employers Can’t Use Expunged Misdemeanors to Reject Job Applicants

Recently, a Second District California Court of Appeal held that a public school district violated Labor Code section 432.7, known as the nondisclosure statute, when it rejected two job applicants because of their expunged misdemeanor convictions (A.S. v. Los Angeles Unified School District (Cal. Ct. App. 2026).

Remember, California law regulates when and how an employer may consider an applicant’s criminal history, as well as how a background check is obtained. Depending on the type of information employers are looking for, background checks can involve several different laws, including California’s Fair Chance Act and the California Labor Code’s rules on criminal background checks as well as federal and state restrictions on obtaining consumer reports.

California’s nondisclosure statute prohibits employers from asking about certain kinds of criminal convictions. The statute applies to any employer — including public agencies or private employers — and bars the employer from asking an applicant to disclose, in writing or verbally, information about arrests or detentions that did not result in conviction or convictions that were judicially dismissed or sealed, among others.

In this case, one job applicant had an expunged misdemeanor battery conviction and sought a part-time after-school position. The other applicant, who had an expunged misdemeanor grand theft conviction, sought a legal secretary position in the school district’s office of general counsel. The school district argued that its duty to protect children justified screening out applicants with nearly any criminal convictions, regardless of expungement.

The court disagreed and held that the nondisclosure statute bars employers from asking about or “utilizing” expunged convictions in hiring decisions. Additionally, while the statute contains exceptions for “particular convictions,” no exception existed in this case. For example, the Education Code that applies to school districts identifies violent or serious felonies or sex offenses, among others, as exceptions but not the types of misdemeanors held by the two applicants in this case.

A few key takeaways for employers:

• Being required to conduct background checks doesn’t permit an employer to use everything those background checks reveal.
• Do not ask about or consider expunged or dismissed convictions unless a specific law requires it for that position.
• Remember the broader framework of California’s Fair Chance Act, including individualized assessment requirements.
• Review your background check process and consult with legal counsel to ensure it complies with the law.

HRCalifornia members can read more about Obtaining a Background Check and Investigation by Employers in the HR Library, and use the Criminal Background Screening Checklist to ensure that they are following all legally required procedures and completing all legally required forms. Not a member? Learn how to power your business with a HRCalifornia membership.