After AB-1008 – Can an Employer Consider an Infraction Conviction for Hiring Purposes?

On October 14, 2017, Governor Jerry Brown approved AB-1008.[1] AB-1008 was intended to provide people with prior criminal convictions more opportunities to be considered for job placements.

AB-1008 has made changes to Government Code section 12952 and now clearly defines when employers can inquire into the conviction history of a job applicant and what criminal history information the employer is entitled to consider while conducting a background check. Generally, an employer is prohibited from inquiring into the conviction history of an applicant until after the employer has made a conditional offer of employment to the applicant. Further, once the employer has made this conditional offer of employment and is thereby permitted to conduct a conviction history background check, the employer may not consider: (1) an arrest, not followed by a conviction (in most circumstances), (2) a referral to or participation in a pretrial or post-trial diversion program or (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated by law.

Therefore, an employer may consider an infraction conviction if it is not included in one of the above-mentioned prohibited categories. If an applicant is worried his or her infraction conviction may cause difficulty in the employment process, they can seek to have the infraction dismissed pursuant to Penal Code section 1203.4a.

Generally, a person is qualified to petition for an expungement to an infraction under Penal Code section 1203.4a when: (1) one year has lapsed since the pronouncement of judgment, (2) the person has fully complied with and performed the sentence of the court, and (3) is not serving a sentence for any offense and is not under charge of commission of any crime and has lived an honest and upright life and conformed to and obeyed the laws of the land since the pronouncement of judgment.

Once the infraction is dismissed pursuant to Penal Code section 1203.4a, generally, employers are prohibited from considering it for employment purposes.

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