For Employers

What Arizona Employers Should Know About Set-Aside Convictions

A "set aside" conviction looks different from a regular conviction on a background check. If you're an Arizona employer, here's what that distinction actually means.

Set-aside in plain terms

When an Arizona court grants an application under A.R.S. § 13-905, the judgment of guilt is vacated and a "set aside" notation is added to the record. The conviction itself is technically dismissed; the criminal proceeding is, in legal terms, no longer a final conviction.

For an employer running a background check, this means the offense will still appear in the candidate's history — but with the notation that it has been set aside under § 13-905.

How to evaluate a set-aside record

Set-aside is granted at the court's discretion. The court already considered the petitioner's rehabilitation, the offense circumstances, restitution payment, and any post-conviction conduct. By granting set-aside, the court has determined that the petitioner has met the statutory and discretionary criteria for relief.

For employers, a set-aside is generally a positive signal compared to a live conviction:

• The petitioner completed all sentence terms
• All restitution and fines were paid
• No subsequent felony convictions occurred during any waiting period
• A judge specifically reviewed the case and determined relief was warranted

Set-aside vs sealing — different things

If a candidate's record is sealed under § 13-911, the conviction is hidden from public background checks entirely. You won't see it. The candidate can legally answer "no" to "have you ever been convicted of a crime" on most applications.

If a candidate's record is set aside under § 13-905, the conviction is visible but marked as set aside. The candidate cannot deny the conviction occurred — it shows up — but the legal status has changed.

Banning set-aside disclosure questions

Some occupational licensing boards in Arizona explicitly recognize set-aside convictions as different from live convictions. For employment generally, you have discretion — but be mindful of:

• Federal Equal Employment Opportunity Commission guidance. Conviction-based hiring decisions must be job-related and consistent with business necessity.
• Disparate impact concerns. Blanket "no convictions" policies disproportionately affect minority candidates and can create liability.
• "Ban the Box" sentiment. While Arizona doesn't have statewide ban-the-box, individual cities may. Phoenix, for example, restricts conviction questions on initial applications for city government jobs.

Practical guidance

If you see a set-aside notation, consider:

1. How relevant is the offense to the role? A 2010 misdemeanor possession is rarely relevant to office work.
2. How much time has passed?
3. What does the candidate say about it? Most candidates with set-aside convictions can speak to what they've done since.
4. Is there a legitimate business reason to disqualify based on this specific offense?

A set-aside is, in practice, a court's way of saying "this person has earned a second chance." The legal vacating of the judgment reflects that determination. Employers who treat set-aside records favorably — without ignoring legitimate red flags — gain access to a substantial talent pool that competitors are filtering out.