Response from Joseph S. Tobener, JD MS
I am an attorney and college career counselor. Under California law, a person convicted of a felony can have the conviction dismissed if they paid all restitution and successfully completed probation. A dismissal means that the conviction never occurred. Under California Labor Code section 432.7, employers cannot ask about convictions that have been dismissed.
The turn around is fairly quick. In November, I filled out the paperwork for a student, and the felony was removed from his record by January. Most felonies can be removed, excepting sex crimes.
The Superior Court of California has a great self-help website with info on removing felonies.
Question from Susan Ireland
I'm assuming that if one has had his conviction dismissed, you would recommend the job seeker list something vague in his resume's work history section so as to disguise his time in prison. Ideas include listing:
- Occupational Title and The State of California (or another state) as the employer
- Student, Name of Educational Institution (if they took classes while in prison)
In your opinion, are these ideas legal and acceptable? And are they legal and acceptable if one has not had their conviction dismissed?
Response from Joseph S. Tobener, JD MS
Great questions and great ideas. If the resume bullet is arguably true, then I advise my students to go for it. I have listed prison work under job history. I have never listed education, but I think it's a fantastic idea and counselors should be clued in to ask about it.
Things get trickier on applications. That is a whole other set of emails, I suppose.
Response from Kathy Knudson, MFT, NCC, MAC,CADC II, Career & Personal Development Institute, San Francisco
I need to weigh in on this one as I work and have done so for many years with numerous ex-felons. First, I am not an attorney, however with information gleaned from the SF Public Defender's Office Clean Slate program, Alameda County's East Bay Community Law Center, and San Mateo County Public Defender's Office, this is what I have found and tell my clients, especially those with convictions outside the State of California.( I always refer them to the afore mentioned entities for assistance.) Thank you Joseph Tobener for providing the link to the Calif. Courts Self-Help Center. Clients need to know they have two rap sheets, a DOJ, (State of Calif) and an FBI rap sheet. They need to know what is on both.
Expungement is a limited remedy that does not erase a case from your record, but rather results in a notation to your rap (record of arrest, conviction & disposition history) sheet indicating that the conviction has been "dismissed [in] furtherance of justice (DIS, FURTH OF JUST)" IR "dismissed pursuant to PC 1203.4." California law allows the courts and DOJ (Calif. Dept. of Justice) to expunge most convictions of a juvenile following criminal prosecution, most adult misdemeanor convictions, and many felony convictions. Although these records cannot be sealed, expungement allows you to reply "no" on most private employment applications that ask whether you have been convicted; however, you would still have to disclose prior convictions to government employers. A dismissal conviction can also enable you to apply for a Certificate of Rehabilitation and a pardon. Expungement dismissals can also lift bars on licensing or certification for jobs and businesses; you should contact the specific licensing/certification board for information.
Who Can See "Expunged" Cases
Anyone with access to rap sheets can view expunged cases; expungement does not erase the conviction. Under California law, you must disclose these convictions on job applications and in interviews on the following types of applications:
- Law enforcement
- Health Care Facilities where the position requires patient contact or access to medication (for certain types of convictions)
- Financial Institutions
- Public employment
- Public office
- Occupational licenses
There are three types of cases that can be sealed:
- Arrests that did not lead to conviction
- Juvenile ward of the court orders
- Upon successful completion of drug diversion.
Who Can See "Sealed" Cases
Sealed information for arrests that did not lead to conviction or juvenile ward of the court orders remains available in three situations:
- Certain employers, such as law enforcement & health care facilities may inquire about sealed information.
- The Department of Motor Vehicles has access to sealed juvenile records to determine insurance rates
- Other agencies may inquire about sealed juvenile records under the "three strikes" law if you were adjudicated a ward of the juvenile court when you ere sixteen or older for a felony or other serious offense & were later charged with a felony.
The LAW regarding criminal records and private employers: You have the right to not disclose juvenile records, "expunged" records, otherwise dismissed records (i.e., dismissed upon successful completion of diversion program), or records of arrests not leading to convictions. If your conviction has been dismissed/"expunged," you have a right to answer "NO" to the question "Do you have any criminal convictions?" and to not list them on an application form.
The REALITY regarding criminal records and private employers: Employers can access records, even of "expunged"/dismissed convictions, diversion cases, and arrests not resulting in convictions, through background checks (in courts, through background checks, or on the many websites offering background check services). Therefore, only you can decide how to address prior records -- whether to not disclose or whether to disclose and explain (through a prepared letter or speech).
It has been my personal experience that the majority of companies are now doing background checks on potential employees because of the cost of "on-boarding" someone in addition to the risk management factor. There is so much information in the public domain, I now assume that someone will access it. Even though it is illegal to use the above information in the hiring process, we know how easy it is for the interviewer to simply say, "We found a candidate who was a better fit for our requirements."
Everyone is an individual, and each situation should be determined on its own merits. I work with a lot of people with lengthy criminal histories, and have found that they have a tendency to think their record will simply disappear through the expungement process. I spend a good deal of time talking about their particular situation and how they are going to address the issue on the application (which is a legal document) and on their resume. Again, the majority of my clients have more than one conviction. On the application you can check the box YES, list the penal code you were convicted of, and write "See Packet."
What is in the packet? Larry Robin calls it a "Turn Around packet." It has references from former employers, long-time landlord, probation/parole officer, police officer, or a judge. It has evidence of making restitution, proof of involvement in a skill building activity, a clean DMV record, proof of being drug free, doing volunteer work, etc. The concept is how you have turned your life around since your involvement with the criminal justice system.
People with criminal records have a history of being hired in entry-level jobs at some of the following places: Warehouses, Janitorial, Non-profit organizations, Car washes, Fast Food, Lumber Yards, Landscaping, Newspaper delivery, Garbage removal, Religious organizations such as charities, Advertising promotion distribution companies, Salvage yards, Nursery-Trees, Plants, etc., Printers, Construction (there are 26 Labor Unions in San Francisco, most have apprenticeship programs). They need to know these entry-level positions are just that: an opportunity to build credibility for the next job. Most of the ex-felons I work with need to spend more time getting known in the community where they want employment. They need more help with filling out applications, and learning how to talk succinctly about their situation in an interview.
Response from Marty Nemko
My approach with clients who have a felony on their record:
- If he served in county jail, try to get it expunged.
- If it's state jail, it's too much hassle and too-poor-prospects of it working to try to get a "statement of rehabilitation."
- If his or her felony won't be expunged, that's yet one more reason to forgo applying for openly advertised jobs. They'll almost never hire an ex-felon. So, I have my clients make unsolicited walk-ins and calls to target employers. I teach them this approach:
"This is probably one of the weirder calls you've gotten in a while. I'm an ex-felon, just having gotten out of prison. I'm terrified that no one will ever give me a job. I made a terrible mistake, which I will never make again, but I need someone willing to give me a chance--perhaps someone who themselves was given a second chance. Although I have skills in using office software and in basic accounting, I'm willing to start at the bottom--sweep floors, whatever, to prove that I'm a good and honest worker. I so want to prove that to an employer and to myself. If you might need someone or even have some advice as to where you think I might turn, I'd love to hear from you."
Response from Markell R. Steele, Career Counselor, Futures in Motion
I think a closely related issue is "when to disclose." It's been my experience that recruiters don't expect to see disclosure on a resume but do expect to see it in the job application. So, the resume is an opportunity to highlight successes.
I recently attended a conference session, The Secrets of Corporate Recruiting, in which a recruiter talked about moving from "screening out" to "screening in" candidates. The initial selection stages are designed to screen out candidates, so the emphasis is on objective criteria (job titles, education, work history). For this, the candidate needs a good resume with relevant information.
If no application is completed, recruiters expect disclosure during the screening interview.
Once the candidate progresses to the phone interview with the recruiter, there is a switch to screening in and becoming an advocate of the candidate. It’s at this stage she suggested candidates disclose anything that will come up in a background check. She felt any omissions were “lies” and deliberate attempts to deceive. The omission is seen as worse than whatever it is they were “hiding.”
This is such a tricky issue. In the best of times employers will have reservations. Now, they have an abundance of candidates to choose from who don't have legal issues. Way back when I first started in this profession, I worked for the PIC (now WIB). I worked with my share of this type of candidates. We had to use a really personalized approach to their job search, so that the employer felt comfortable hiring people with felony records. The reality is that some jobs were just not going to be available to them. For those that were, trust had to be established, which is beyond writing a good resume.