A.S. v. Los Angeles Unified School Dist.
CourtCalifornia Court of Appeal
Date FiledSeptember 22, 2026
DocketB335692
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Filed 9/22/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
A.S., B335692, B335732
Plaintiff and Respondent, Los Angeles County
Super. Ct. Nos. 21STCV30121
v. & 21STCV31740
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant.
E.M.,
Plaintiff and Respondent,
v.
LOS ANGELES UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of
Los Angeles County, Colin P. Leis and Timothy Patrick Dillon,
Judges. Affirmed.
Dannis Woliver Kelley, Keith A. Yeomans; Office of the
General Counsel, Anthony Julian Bejarano for Defendant and
Appellant.
DHF Law, Joshua E. Kim; Sarah Wiken True for Plaintiffs
and Respondents.
____________________
An employer may want to know if job applicants have
criminal records. A competing interest favors rehabilitation by
ensuring small past mistakes do not doom good workers to a
lifetime of impoverished employment opportunities. The
California Legislature has been active in adjusting the boundary
between these clashing concerns. A key statute, repeatedly
amended, is section 432.7 of the Labor Code, which we call the
Nondisclosure Statute.
In simple terms, the Nondisclosure Statute prohibits
employers from asking applicants about certain kinds of criminal
convictions. The statute also makes exceptions to the general
prohibition. We construe this statute and conclude no exception
defeats the general prohibition on the facts of this case. This
means the defendant and appellant employer in this case — the
Los Angeles Unified School District — violated the Nondisclosure
Statute when it rejected two applicants based on their expunged
misdemeanor convictions.
I
Two people sought work with the District. A.S. had been
convicted of misdemeanor battery under section 242 of the Penal
Code, while E.M. had suffered a conviction for misdemeanor
grand theft under subdivision (a) of section 487 of the same code.
Both had their convictions expunged according to the procedure
set out in Penal Code section 1203.4, which we call the
2
Expungement Law. Although the Expungement Law is different
from the Nondisclosure Statute, this case is about one
relationship between the two.
We pause to comment on this term “expungement.” Penal
Code section 1203.4 does not use this word, but it is the common
vernacular for this statutory process. (E.g., People v. Field (1995)
31 Cal.App.4th 1778, 1786–1788; People v. Allen (2019) 41
Cal.App.5th 312, 317 & fn. 1 (Allen) [colloquial description].)
Nevertheless, “expungement” remains something of a
misnomer, because expunged convictions still exist and can have
adverse consequences. (Allen, supra, 41 Cal.App.5th at p. 317,
fn. 1 [“may disqualify the defendant from possessing firearms or
holding public office”]; People v. Vasquez (2001) 25 Cal.4th 1225,
1230 [“nonpenal restrictions or qualifications imposed for public
protection, such as licensing of attorneys”]; People v. Frawley
(2000) 82 Cal.App.4th 784, 791 [“limitations on this relief are
numerous and substantial”].)
We resume our factual statement.
A.S. applied for a job as a part-time program worker with
an after school program run by the District. E.M. applied to work
as a legal secretary in the District’s office of general counsel. We
call A.S. and E.M. the applicants.
On account of their expunged convictions, the District
rejected both applicants, maintaining the expungements did not
matter: the District sought to protect children under its care by
screening out everyone with almost any kind of criminal
conviction.
The applicants sued separately. Different trial courts
granted summary judgment motions against the District. Both
courts ruled the District had misinterpreted the Nondisclosure
3
Statute and had erroneously inquired about the expunged
misdemeanor convictions.
The District sought review. The parties agreed to
consolidate the two cases into this one appeal.
II
Our independent review of this statutory question requires
us to delve into the Nondisclosure Statute and other laws it cross-
references.
For our purposes, the Nondisclosure Statute has a basic
prohibition that is subject to exceptions. The basic prohibition is
subdivision (a)(1) of section 432.7 of the Labor Code. We call this
subdivision the Basic Prohibition.
The Basic Prohibition is, in turn, subject to an array of
exceptions. The pertinent ones are Exception M and Exception
N. (See Lab. Code, § 432.7, subds. (m), (n).)
We divide our analysis into four parts. First, did the Basic
Prohibition bar the District from asking the applicants to disclose
their expunged convictions? We conclude it did. Second, did
Exception M rescue the District? We answer no. Third, did
Exception N rescue the District? Again our answer is no.
Fourth, might legislative history alter the meaning of the
statutory text? We conclude legislative history supports our
determination that neither exception applies.
In summary, then, the Basic Prohibition closed the gate on
the District’s use of the expunged misdemeanors, and neither
Exception M nor Exception N reopened the gate. We therefore
affirm both judgments against the District.
We detail our analysis.
4
A
The Basic Prohibition applied to the District. This means
the statute, as a provisional matter, told the Department not to
ask applicants about expunged misdemeanor convictions.
We quote the lengthy text of the Basic Prohibition, which is
not reader-friendly. Then we excerpt the block quotation to
obtain a tractable summary germane to this case.
With our italics, the text of the Basic Prohibition is as
follows:
“An employer, whether a public agency or private
individual or corporation, shall not 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 posttrial 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, 1203.425, 1203.45, and 1210.1 of the
Penal Code. An employer also shall not 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, 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, 1203.425, 1203.45, and 1210.1 of the
Penal Code. This section shall not prevent an employer from
asking an employee or applicant for employment about an arrest
5
for which the employee or applicant is out on bail or on their own
recognizance pending trial.” (Lab. Code, § 432.7, subd. (a)(1),
italics added.)
Now we simplify this dense provision for this case:
Employers cannot ask job applicants to disclose dismissed
convictions and cannot “utilize” records of dismissed convictions.
In this context, a dismissed conviction means an expunged
conviction.
The Basic Prohibition covered the District’s actions. The
District was an employer. It asked about expunged misdemeanor
convictions. And it “utilized” this information to reject these two
applicants.
The District protests it is not an “employer” under this
provision. It suggests the word “employer” in the second sentence
has a different and more restrictive meaning than the word
“employer” in the first sentence. This proposal would insert a
silent discontinuity running counter to ordinary usage, which
favors consistency of meaning within a block of text absent an
express statement of contrary intent. We reject the District’s
anomalous approach. The Basic Prohibition applied to the
District’s actions here.
B
Exception M does not save the District.
We begin by reciting the full text of Exception M. It
states that the Basic Prohibition
“. . . does not prohibit an employer, whether a public
agency or private individual or corporation, from asking an
applicant about, or seeking from any source information
regarding, a particular conviction of the applicant if,
pursuant to Section 1829 of Title 12 of the United States
6
Code or any other federal law, federal regulation, or state
law, any of the following apply:
“(A) The employer is required by law to obtain
information regarding the particular conviction of the
applicant, regardless of whether that conviction has been
expunged, judicially ordered sealed, statutorily eradicated,
or judicially dismissed following probation.
“(B) The applicant would be required to possess or
use a firearm in the course of their employment.
“(C) An individual with that particular conviction is
prohibited by law from holding the position sought by the
applicant, regardless of whether that conviction has been
expunged, judicially ordered sealed, statutorily eradicated,
or judicially dismissed following probation.
“(D) The employer is prohibited by law from hiring an
applicant who has that particular conviction, regardless of
whether that conviction has been expunged, judicially
ordered sealed, statutorily eradicated, or judicially
dismissed following probation.
“(2) For purposes of this subdivision, ‘particular
conviction’ means a conviction for specific criminal conduct
or a category of criminal offenses prescribed by any federal
law, federal regulation, or state law that contains
requirements, exclusions, or both, expressly based on that
specific criminal conduct or category of criminal offenses.”
(Lab. Code, § 432.7, subd. (m), italics added.)”
Pared to essentials, this section says employers may ask
applicants or seek information about particular convictions if a
law requires the employer to obtain information about those
particular convictions, even if expunged, or a law prohibits the
7
employer from hiring an applicant with a particular conviction,
even if expunged. The particular conviction must be described by
law.
The District correctly asserts it is both an employer bound
by law to obtain information about particular convictions and an
employer prohibited by law from hiring applicants with
particular convictions. (See Educ. Code, §§ 44830.1, subd. (a),
44836, 45122.1, subd. (a), & 45123.) Thus, the District properly
can avail itself of Exception M when fulfilling either of these
legally mandated duties.
The problem for the District here is that it cannot identify a
law that requires it to either obtain information about or restrict
employment of someone with the particular convictions at issue.
The District does not point us to any law requiring it to obtain
information about or restrict the employment of someone with a
conviction for misdemeanor grand theft or misdemeanor battery.
The Education Code apparently evinces no particular interest in
these specific misdemeanors.
Furthermore, although Exception M allows the District to
ask about and seek information about particular convictions, it
does not permit the District to utilize the convictions as it did
here. Rather, current Exception M omits the word “utilize” that
appeared in an earlier version of this section. We return to this
point in part four of our analysis.
The District points to subdivision (a) of section 44008 of the
Education Code, which generally specifies that expungements
obtained via the Expungement Law shall have no effect. This
provision is not germane because it is not a law identifying
particular convictions the Legislature deemed relevant to the
employment decision. This section thus differs from subdivision
8
(a) of section 44830.1 of the Education Code, which specifically
restricts employing people convicted of “a violent or serious
felony, or of a sex offense.” (See also id. §§ 45122.1, subd. (a) [“a
violent or serious felony”]; 45123, subd. (a) [“any sex offense”];
45123, subd. (b) [“a controlled substance offense”]; 44836, subd.
(a)(1) [“any sex offense”]; 44836 subd. (b)(1) [“any controlled
substance offense”].)
All these just-cited Education Code provisions show the
Legislature has been active and specific in identifying particular
convictions that lawmakers thought relevant to school district
employment decisions.
In sum, Exception M does not validate the District’s
actions.
C
Exception N does not aid the District.
In its full text, Exception N states that the Basic
Prohibition “does not prohibit an employer, whether a public
agency or private individual or corporation, required by state,
federal, or local law to conduct criminal background checks for
employment purposes or to restrict employment based on criminal
history from complying with those requirements, or to prohibit the
employer from seeking or receiving an applicant’s criminal
history report that has been obtained pursuant to procedures
otherwise provided for under federal, state, or local law. For
purposes of this subdivision, federal law shall include rules or
regulations promulgated by a self-regulatory organization, as
defined in Section 3(a)(26) of the Securities Exchange Act of 1934,
pursuant to the authority in Section 19(b) of the Securities
Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law
11-203).” (Lab. Code, § 432.7, subd. (n), italics added.)
9
Isolating and italicizing the key words, Exception N holds
that the Basic Prohibition “does not prohibit an employer . . .
required by state . . . law to conduct criminal background checks
for employment purposes or to restrict employment based on
criminal history from complying with those requirements.” (Lab.
Code, § 432.7, subd. (n), italics added.)
Thus, Exception N allows employers to comply with two
types of legal requirements: (1) the requirement to run a
criminal background check; and (2) the requirement to restrict
employment based on criminal history.
The District points out it indeed is required by state law to
conduct criminal background checks for employment purposes.
(See Educ. Code § 45125.) But this fact does not mean the
District can utilize all it discovers in making employment
decisions. Exception N allows the District to run the background
check. That is all Exception N allows an employer to do, unless it
also is an employer required to restrict employment based on
criminal history. Only where the employer falls into both
categories can an employer utilize the information garnered from
the background check for purposes of determining employment.
As the District asserts, it is an employer required to restrict
employment based on criminal history. (See Educ. Code,
§§ 44830.1, subd. (a), 44836, 45122.1, subd. (a), & 45123.) But
none of these cited sections specifically identifies misdemeanors
as an employment prohibition.
Employers that fall into both categories—required to
conduct background checks and required to restrict employment
based on criminal history—may use the fruits of the check to
restrict employment, but only to the extent of the specific
employment restrictions.
10
The District contends that being an employer required to
conduct background checks entitles it to use any information it
receives in that process. Not so. Exception N allows use of the
information obtained from the background checks only to comply
with legal obligations to restrict employment based on criminal
history. Otherwise, the Basic Prohibition’s ban on utilization of
expunged convictions still governs.
While the District is required to limit employment based on
certain criminal histories, it does not identify a law requiring it to
limit employment based on the criminal histories at issue here.
Thus, while Exception N does allow the District to use certain
information found in background checks, it does not immunize
the actions the District took here.
D
As detailed above, the language of the statute required the
District to comply with the Basic Prohibition. The District
argues against this result by claiming that the language is
ambiguous and resort must be made to the legislative history.
The legislative history, however, supports our interpretation and
not the District’s.
In 2013, the Legislature added subdivision (m) to the
Expungement Law because the statute as then written was
proving “ineffective” in the legislators’ judgment: employers were
still using expunged convictions to deny employment. (Sen. Com.
on Pub. Safety, Rep. on Bill No. 530 (2013-2014 Reg. Sess.) as
amended Apr. 15, 2013, Comments, § 1.)
Subdivision (m) allowed employers to ask about, to seek
information about, and to utilize this information about criminal
convictions as a factor in determining employment if: 1) the
employer was required by law to obtain information about a
11
conviction; 2) the applicant would use or possess a firearm in
connection with employment; 3) an individual convicted of a
crime is prohibited by law from holding the position sought by the
applicant, even if expunged; or 4) the employer is prohibited by
law from hiring anyone convicted of a crime. (Former Lab. Code,
§ 432.7, subd. (m)(1), as amended by Stats. 2013, c. 721 (S.B.530),
§ 1.)
However, subdivision (m) did not entirely fix the problem,
in the judgment of legislators in 2018. This 2018 legislative view
was that employers were “overzealous in their screening” and
“wrongly believe[d] that the previous amendment allow[ed] them
to reject an applicant for an unrelated, expunged conviction.”
(Sen. Comm. on Pub. Safety, Rep. on Sen. Bill No. 1412 (2017-
2018 Reg. Sess.), Comments, § 1, emphasis added].)
Also in 2018, legislators believed the Ninth Circuit had
interpreted the exception “more broadly than was intended” by
allowing an employer to look at all expunged convictions, not just
those related to the job in question. This Ninth Circuit case was
Frank Noori v. Vivint Inc. (9th Cir. 2018) 726 Fed. Appx. 624.
(Sen. Comm. on Pub. Safety, Rep. on Sen. Bill No. 1412 (2017-
2018 Reg. Sess.), Comments, § 2.)
It was this state of affairs that the 2018 Senate Bill 1412
aimed to fix. In its final form, Senate Bill 1412 amended
subdivision (m) and added subdivision (n), which we have called
Exception M and Exception N.
Exception M allows employers to obtain information only
about “particular convictions,” i.e., those related to the job as
specified in federal or state law. (Lab. Code, § 432.7, subd.
(m)(2).) Exception M omits the permission to “utilize”
information included in the previous version.
12
As detailed above, Exception N continues to allow
employers to run background checks required by law and it
contains a modified grant of the permission to utilize information
Exception M now omits. While a background check would deliver
to employers all background information—that is, expunged
convictions that are related to the job in question as well as those
that are not—Exception N only permits use of the information to
comply with laws restricting employment based on criminal
histories. If employers utilize the convictions that have been
expunged and are not specified in another law, Exception N does
not apply and the employer runs afoul of the Basic Prohibition.
Under this interpretation, then, each subdivision achieves
Senate Bill 1412’s goal of barring employers from using
irrelevant expunged convictions.
A related legislative action during the same legislative
session bolsters this interpretation. That action spawned
Government Code section 12952, which some called the “Ban the
Box” initiative. (The “box” referred to little squares on standard
employment forms that employees were forced to check if they
answered yes to a question like “Have you been convicted of a
crime?”) This statute similarly limited the scope of employment
background checks, and it contained a broad exemption for any
employer required by law to run a background check. (Gov. Code,
§12952, subd. (d).) Opponents of Senate Bill 1412 asked for a
“mirror exemption” to the one in Section 12952. (Ass. Comm. on
Lab. and Emp., June 27, 2018 Hearing on Sen. Bill No. 1412
(2018-2019 Reg. Sess.) as amended June 19, 2018, Arguments in
Opposition.) Although the Legislature amended the language
before enacting it, they did so to the markedly narrower language
we interpret here. (Cf. Gov. Code, §12952, subd. (d)(1) [“This
13
section does not apply in any of the following circumstances: (1)
To a position for which a state or local agency is otherwise
required by law to conduct a conviction history background
check”]; Sen. Bill No. 1412 (2017-2018 Reg. Sess.) as amended
June 19, July 3, and August 23, 2018; (Ass. Comm. on Lab. and
Emp., June 27, 2018 Hearing on Sen. Bill No. 1412 (2017-2018
Reg. Sess.) as amended June 19, 2018, Arguments in Opposition
[noting the request for mirror exemptions].)
This parallel and contemporaneous legislative action
supports the idea that the Legislature did not intend to include
the same broad exception for any employer who law requires to
run a background check that exists in section 12952.
In short, the legislative history supports our interpretation.
Because the District cannot identify a law requiring it to restrict
employment based on the relevant crimes, the District may not
avail itself of Exception M and Exception N in this case. It was
not allowed to use these expunged misdemeanor convictions as a
reason to reject these employment applications.
DISPOSITION
We affirm the orders and award costs to the respondents.
WILEY, J.
We concur:
STRATTON, P. J. SCHERB, J.
14