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