The California Clean Slate Act

California’s Clean Slate Act: Record Sealing and Expungement by Darren Chaker

Record sealing and expungement are now automated as Darren Chaker points out. California’s Clean Slate Act (AB 1076) is a groundbreaking law designed to provide criminal record relief to individuals who have completed their sentences and demonstrated rehabilitation. AB 1076, which took effect on January 1, 2021, automates the process of sealing certain criminal records and expands eligibility for expungement. The Clean Slate Act was expanded to include felonies in SB 731 (2022) and became effective July 1, 2024.

For individuals like Darren Chaker, who advocates for fair background checks and second chances, this law represents a significant step toward reducing the stigma of past convictions.

In this article by Darren Chaker, will explore the key provisions of the Clean Slate Act, its impact on expungement and background checks, and how it aligns with federal laws governing the reporting of criminal records.

Legal researcher Darren Chaker also examines 10 notable lawsuits where background check companies faced legal action for reporting sealed or expunged records, including cases like Williams v. First Advantage LNS Screening Solutions Inc. and Smith v. LexisNexis Screening Solutions, Inc.

What is the Clean Slate Act (AB 1076)?

The Clean Slate Act, codified under California Penal Code § 1203.425, automates the process of sealing certain criminal records for individuals who have completed their sentences and remained crime-free for a specified period. This law aims to reduce barriers to employment, housing, and education for individuals with past convictions.

Darren Chaker Researched Key Provisions of The Clean Slate Act

Automatic Record Sealing: Eligible misdemeanor convictions will be automatically sealed after three years, and eligible felony convictions will be sealed after seven years, provided the individual has not been convicted of a new offense. Penal Code § 1203.425 (3)(A) states: “Commencing on January 1, 2023, for any record retained by the court pursuant to Section 68152 of the Government Code, except as provided in paragraph (4), the court shall not disclose information concerning a conviction granted relief pursuant to this section or Section 1203.4, 1203.4a, 1203.41, or 1203.42, to any person or entity, in any format, except to the person whose conviction was granted relief or a criminal justice agency, as defined in Section 851.92.”
Expungement Eligibility: The law expands eligibility for expungement under Penal Code § 1203.4, 1203.4a, and created 1203.425 (effective January 1, 2023) allowing record sealing to become automated, while still allowing individuals to petition the court to dismiss expunge or request sealing of his or her case in the event it was not sealed in error.
Prohibition on Discrimination: Employers and landlords are prohibited from considering sealed or expunged records in hiring or housing decisions.

For more details on the Clean Slate Act, visit the California Legislature’s official website.

The Clean Slate Act and Background Checks: What You Need to Know

Expungement and Background Checks: What You Need to Know

Expungement is a legal process that allows individuals to have their criminal convictions dismissed. Under California Penal Code § 1203.4, individuals who have successfully completed probation can petition the court to dismiss their convictions. Once a conviction is expunged, it is no longer visible on most background checks. There are several additional statutes

Prior to the Clean Slate Act, when a defendant requested expungement, the court would ‘set-aside’ the conviction and relieve the defendant of multiple hardships. For example, the defendant would no longer need to the disclose the former conviction on employment applications, unless applying for state licensure, could not be impeached with a former conviction, and background check companies could not report the conviction. However, the court record remained a public record

While other statutes existed at the time the Clean Slate Act was enacted to seal the public record if an arrest did result in a conviction, Penal Code § 851.91, or to seal and destroy all records if the factual innocence can be established by demonstrating the absence of probable cause for the arrest, Penal Code § 851.8, expungement under California law had no impact on the court file.

Nonetheless, background check companies soften fail to update their records if a case does not result in a conviction, results in expungement, or sealing. The failure of data brokers who often collect information then resell such to third parties like online background check companies to, employment and rental screening companies often results in reporting of sealed or expunged convictions. This can have devastating consequences for individuals seeking employment or housing.

The Clean Slate Act Requires Record Sealing – Courts Find in Favor of Plaintiff’s With Sealed Records Being Disclosed by Data Brokers and Background Checks Companies Under the FCRA

Darren Chaker provides 10 cases where background check companies were sued for reporting sealed or expunged records:

Williams v. First Advantage LNS Screening Solutions Inc., 947 F.3d 735 (11th Cir. 2020) The court upheld the jury’s verdict, finding that the defendant’s actions were sufficiently reprehensible to warrant punitive damages. “The background reports sent to the applicant’s prospective employers contained criminal records for a different person who was mistakenly identified as the applicant. This was supported by sufficient reprehensibility of the defendant’s misconduct.”
Stokes v. Realpage, Inc., Civ. A. No. 15-1520 (E.D. Pa. Oct. 18, 2016) The court denied the defendant’s motion to dismiss, allowing the case to proceed. “Defendant regularly and illegally reports criminal records that have been expunged, sealed, or otherwise removed by court order. In some situations, the report of an expunged case deprives the individual of a report that he has no criminal record.”
Smith v. LexisNexis Screening Solutions, Inc., 837 F.3d 604 (6th Cir. 2016) The court upheld the $75,000 award in favor of the plaintiff. “The severity and the extent of Smith’s woes, viewed through an appropriately deferential lens, demonstrate that the district court’s denial of Lexis’s motion to remit the $75,000 award was not in error.”
Singleton v. Domino’s Pizza, LLC, 976 F. Supp. 2d 665 (D. Md. 2013): The court denied the defendant’s motion for summary judgment, allowing the case to proceed. The Court stated in part, “The plaintiff alleged that the defendant’s background check report included expunged records, which violated the Fair Credit Reporting Act (FCRA).”
Johnson v. HireRight Solutions, Inc., 2013 WL 3816667 (D. Or. July 22, 2013): The court granted the plaintiff’s motion for summary judgment, finding the defendant liable. “The plaintiff claimed that the defendant’s background check report included sealed juvenile records, which violated state and federal law.”
Smith v. HireRight Solutions, Inc., 711 F. Supp. 2d 426 (D. Del. 2010): The Court denied the defendant’s motion to dismiss, allowing the case to proceed. The Court stated in part, “Accordingly, the Court finds *437 that Defendant’s decision to include, either intentionally or recklessly, multiple listings for Plaintiffs single criminal offense could, under the statute’s plain language, be an objectively unreasonable interpretation.”
Kohut v. Trans Union LLC, No. CIV.A.04-2854, 2004 WL 1882239, at *3 (N.D.Ill. Aug. 11, 2004): Here, the court prevented dismissal for inaccurate information being reported, where a plaintiff has alleged that a single debt, albeit accurate, was improperly reported on a credit report numerous times “the accuracy of the information in [the] credit report cannot be determined at the motion to dismiss stage.” The same standard would apply to instances where inaccurate criminal records appear in a background report.
Young v. First Advantage Background Services Corp., 3:22-cv-50222, (N.D. Ill. Feb. 6, 2024) 2019 WL 1254894 (N.D. Cal. Mar. 19, 2019) “The plaintiff alleged that the defendant’s background check report included expunged records, which violated the FCRA.” The court denied the defendant’s motion to dismiss, allowing the case to proceed.
Jones v. Sterling Infosystems, Inc., 317 F.R.D. 404 , 2018 WL 3357493 (S.D.N.Y. July 9, 2018) The court denied the defendant’s motion to dismiss, allowing the case to proceed. “The plaintiff alleged that the defendant’s background check report included expunged records, which violated the FCRA.”
Henderson v. Corelogic National Background Data, LLC, 161 F.Supp.3d 389, No. 3:12CV97, 2016 WL 685127 (E.D. Va. Feb. 18, 2016) “That court held that there was a question of fact whether the defendant maintained ” strict procedures” noting that ” [i]t simply is not complete under FCRA to say that ‘someone named Bill Jones has a conviction record, but whether this is the Bill Jones you are inquiring about, I do not know.'” 161 F.Supp.3d 389, Id. at *11.” The court also held, “It therefore makes sense to read section 1681k(a)(2) to address a different concern — namely, the obligation of the CRA to report current (as opposed to outdated) records. Id. As to expunged or sealed records, there is a duty to update records. Thus if a case is dismissed, the jury found the defendant guilty, but the conviction was reversed on appeal, or subsequently expunged and sealed, dictate real time, accurate information is reported.

How the Clean Slate Act Protects Against Misreporting

The Clean Slate Act strengthens protections for individuals whose records have been sealed or expunged. Under California law, employers and background check companies are prohibited from considering sealed or expunged records in hiring decisions. Additionally, the Fair Credit Reporting Act (FCRA) requires background check companies to maintain accurate and up-to-date records.

Key Takeaways

Automatic Sealing: The Clean Slate Act automates the sealing of eligible convictions, reducing the burden on individuals.
Expungement Expansion: More individuals are now eligible for expungement under Penal Code § 1203.4.
Legal Recourse: Individuals harmed by inaccurate background checks can sue under the FCRA or state law.

Conclusion

California’s Clean Slate Act (AB 1076) is a transformative law that provides much-needed relief to individuals with past convictions. By automating the sealing of records and expanding expungement eligibility, this law helps individuals like Darren Chaker move forward with their lives. However, challenges remain, particularly with background check companies that fail to update their records.

If you believe your rights have been violated by a background check company, consult an experienced attorney to explore your legal options. For more information on the Clean Slate Act, visit the California Legislature’s official website or contact a local public defender to provide legal advice and representation. Of course, do not take anything in this or any other post by Darren Chaker as legal advice.

By understanding your rights and the protections afforded by laws like the Clean Slate Act, you can take control of your future and ensure that your past does not define you.