Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Arizona Governor Doug Ducey recently signed House Bill 2067 into law amending Arizona Revised Statutes (A.R.S.) Section 13-905, to allow persons convicted of certain criminal offenses the opportunity to set aside a prior conviction and seek a Certificate of Second Chance (Certificate). The law permits such second chances for employment opportunities, occupational licenses, and housing. Arizona does not have a pure expungement law completely erasing convictions from a person’s records, but A.R.S. Section 13-905 allows for certain convictions to be set aside. The new amendment permits those individuals who successfully fulfill their probation or sentence conditions to apply to have the court set aside prior convictions and receive a Certificate that prevents being barred from obtaining required occupational licenses if otherwise qualified.
The amendment will take effect August 27, 2021, benefiting ex-offenders by allowing them to seek to set aside certain felony and misdemeanor convictions and assisting them in moving past these prior criminal convictions to increase greater employment and other opportunities. Courts granting applications to set aside prior convictions must also include a Certificate if not issued previously. Eligibility includes persons convicted of misdemeanors, or class 4, 5, or 6 felonies1 with at least two years having elapsed since fulfilling probation or sentence conditions. Eligibility also includes applications to set aside prior convictions for class 2 or 32 felonies with at least five years elapsing since fulfilling probation or sentence conditions. However, the new law does not apply universally to all crimes and convictions. Crimes excluded from being set aside include but are not limited to: 1) driving on a suspended license; 2) violations of ARS Title 28, Chapter 3, which include criminal speeding, felony flight, aggressive driving, and hit and run; 3) convictions involving a deadly weapon, or convictions involving infliction of serious physical injury; 4) convictions requiring the individual to register as a sexual offender or for offender monitoring; 5) sexual motivation convictions; and 6) convictions involving victims under age 15.
Unless specifically excluded, the Certificate releases the person from all barriers and limitations in obtaining an occupational license issued under Title 323 resulting from the conviction if the person is otherwise qualified. Notably, the law still requires the person to admit their prior convictions if asked on employment applications if requested. Because Arizona does not offer a true expungement law, the set aside does not truly expunge the person’s criminal record, and the person will need to disclose their conviction. However, employers conducting a background check will find a notation indicated next to the conviction as being set aside, and the person can report the court’s decision was vacated, charges are dismissed, and present the Certificate issued by the court.
When making a decision to issue an order to set aside the conviction and grant the Certificate, the court considers multiple factors, including but not limited to the nature and circumstances of the offense, the applicant’s compliance with probation or sentence, prior and subsequent convictions, the victim’s input and status of restitution, length of time elapsed, the applicant’s age at the time of conviction, and any other relevant factors to the application. Under the new law, the Certificate is not a recommendation or sponsorship for a promotion of the person who possesses the Certificate when applying for an occupational license, employment, or housing.
Limited Employer Liability
Additionally, the law limits the potential tort liability of employers hiring a person with a Certificate. Specifically, employers generally will not be held liable for hiring an employee or independent contractor who has been issued a Certificate for alleged negligent hiring for injuries or damages caused by the worker. Further, criminal convictions that occurred before the person worked for the employer may not be introduced into evidence. Moreover, in lawsuits alleging a failure to provide adequate supervision, the worker’s previous criminal conviction may not be introduced into evidence unless the employer knew or should have known of the conviction and the type of conviction was directly related to the nature of the employee’s job and the conduct gave rise to the alleged injury. This limitation on liability does not apply to prior convictions for fraud or misuse of money if the employee or contractor later breaches fiduciary responsibilities in the management of money or property. Similarly, these limited liability protections are not available to employers hiring workers as law enforcement officers or security guards who were previously convicted for violent offenses or used excessive force.
Pursuant to ARS 32-4701, the licensing authority has the power to issue to an otherwise qualified applicant who has been convicted of an offense either a regular license or a provisional license, which does not preclude a licensing authority from exercising discretion to issue licenses. Licenses may not be granted for any occupation where the licensee would be supervising vulnerable adults or children, and any initial or renewal license application where the applicant was convicted of committing an offense in the course of performing the duties of the occupation or a substantially similar occupation.
Because the law does not take effect for several months, employers are encouraged to review position requirements, job descriptions, and their employment applications. Human Resources and hiring managers with decision and retention authority will need to be trained on the new provisions within this law. A key point for employers is they are not legally precluded from rejecting a candidate with a Certificate, but a measure of liability protection is granted against certain types of liability if they hire such candidates. The full measure of that protection is not yet known, including, for example, whether it is available in a tort case (e.g., employee assaults a third party) or in an employment case (e.g., an employee sexually harasses a coworker). The other key point for employers is that this amended statute does not legally preclude employers from asking candidates about prior convictions and also does not allow candidates with a Certificate to withhold information about prior convictions, unlike jurisdictions that have enacted “ban-the-box” laws, such as the neighboring states of New Mexico and California. However, the purpose of the law is to aid ex-offenders in reintegrating into the workforce by providing them with some proof of rehabilitation, i.e., the Certificate.
1 In Arizona, misdemeanors are crimes carrying a potential punishment of up to six months in jail and/or a fine of up to $2,500. There are three types of misdemeanors: Class 1, 2, or 3. ARS § 13-601. If an Arizona Misdemeanor doesn’t specify its classification, it defaults to a class 2 misdemeanor. ARS § 13-602(B). Common Class 1 misdemeanor examples include: DUI, assault with injury, disorderly conduct, minor in possession, possession of a prescription drug, driving on a suspended license, and shoplifting. Common Class 2 misdemeanors include: reckless driving, criminal damage less than $250. Common Class 3 misdemeanors include: excessive speeding, assaultive touching, and criminal trespass in the third degree. In Arizona, felonies are crimes punishable by a minimum of one year or more in state prison and classified as Class 1-6. Examples of Class 4 felonies include but are not limited to: property theft between $3,000 and $4,000, forgery, perjury, falsifying a public record, and bribery. Examples of Class 5 felonies include but are not limited to: aggravated domestic violence, credit card theft, prostitution, pimping and pandering. Examples of Class 6 felonies include but are not limited to: property theft between $1,000 and $2,000, criminal damage that causes between $250 and $2,000 of losses, and possession of drug paraphernalia.
2 Examples of non-dangerous Class 2 Felonies include but are not limited to: theft of property valued at $25,000 or more, theft by extortion, first-degree trafficking in stolen property, first-degree money laundering, owning or operating a chop shop, and certain severe drug crimes. Examples of non-dangerous Class 3 Felonies include but are not limited to: theft of property valued between $4,000 and $25,000, second-degree money laundering, and second-degree burglary.
3 Occupations and licenses listed under Title 32 include: Architects, Engineers, Geologists, Home Inspectors, Landscape Architects and Surveyors, Barbers, Cosmetology, Certified Public Accountants, Podiatry, Chiropractic, Collection Agencies, Contractors, Dentistry, Funeral Directors and Embalmers, Medicine and Surgery, Naturopathic Medicine, Nursing, Dispensing Opticians, Optometry, Osteopathic Physicians and Surgeons, Pharmacy, Board of Physical Therapy, Psychologists, Real Estate, Veterinarians, Professional Driver Training Schools, Private Investigators, Physicians Assistants, Security Guards, Radiologic Technologists, Homeopathic Physicians, Private Postsecondary Education, Regulation of Health Professions, Health Professionals, Behavioral Health Professionals, Occupational Therapy, Respiratory Care, Real Estate Appraisal, Child Support Obligations, Privacy Rights, Acupuncture, Board of Certified Reporters, Athletic Trainers, Massage Therapy, Licensure, Certification and Registration of Military Members, Regulation of Non-health professions and occupations, Regulation of Out-of-State Businesses and Out-of-State Employees During a Disaster, Art Therapists.