Los Angeles has become the second California city, after San Francisco, to adopt a so-called “ban the box” ordinance. The new Los Angeles Fair Chance Initiative for Hiring (the “Ordinance”) takes effect on January 22, 2017, and will prohibit private-sector employers operating in the city from inquiring into applicants’ criminal history until after making a conditional offer of employment. Here’s an overview of the new Ordinance.
The Ordinance will apply to private employers located or doing business in the City of Los Angeles that have 10 or more “employees.” An “employee” is any person performing two or more hours of work each week within the city and who is entitled to minimum wage, and includes owners, management and supervisorial employees.
Strict Limits on Criminal History Inquiries
The Ordinance prohibits covered employers from including on an application for employment any question that seeks disclosure of an applicant’s criminal history. The Ordinance also prohibits employers from making any other inquiry into criminal history unless and until a conditional offer of employment has been made. Exceptions exist for employers that are required by law to obtain information regarding convictions; applicants who would be required to possess or use a firearm in the course of employment; applicants who have been convicted of a crime that excludes them from holding the position sought; and employers that are prohibited by law from hiring an applicant who has been convicted of a crime.
Once a conditional offer of employment has been made, an employer may not withdraw it or refuse to hire an applicant based on the individual’s criminal history unless the employer first prepares a written assessment that “effectively links” the specific aspects of the applicant’s criminal history with risks inherent in the duties of the position for which the applicant is being considered. In performing this assessment, employers must, at a minimum, consider all of the following factors:
- the facts or circumstances surrounding the offense or conduct;
- the number of offenses for which the individual was convicted;
- the individual’s age at the time of conviction or release from prison;
- evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- the length and consistency of employment history before and after the offense or conduct;
- rehabilitation efforts, g., education and training;
- employment or character references and any other information regarding fitness for the particular position; and
- whether the individual is bonded under a federal, state, or local bonding program.
If, after conducting the written analysis, the employer decides that the applicant’s criminal record merits revoking the employment offer, the employer must then afford the applicant the opportunity to participate in a “Fair Chance Process.” The Fair Chance Process requires the employer to do all of the following: (1) give the applicant written notification of the proposed adverse action, a copy of the written assessment, and any other information or documentation supporting the proposed adverse action; (2) hold off on taking adverse action or filling the position for at least five business days, to give the applicant an opportunity to provide information or documentation; (3) consider the applicant’s additional information or documentation and perform a written reassessment of the proposed adverse action; and (4) assuming the decision on the reassessment is still not to hire, notify the applicant of the decision and provide a copy of the reassessment. Documents related to this Fair Chance Process must be retained for three years.
Note that employers that do post-offer criminal background checks must also continue to comply with the federal Fair Credit Reporting Act (“FCRA”) and the California Investigative Consumer Reporting Agencies Act. Employers also must continue to follow the limitations set forth under California Labor Code 432.7, which forbids certain inquiries relating to an applicant’s criminal history, including questions about arrests not leading to a conviction, certain marijuana convictions more than three years old, and (as of January 1, 2017) juvenile criminal history.
Notice and Posting Requirements
The new Ordinance also saddles employers with a number of rigorous notice and posting requirements. Specifically, employers must specify in all job solicitations and advertisements that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the law. Additionally, employers must post, in a “conspicuous place” in the workplace that is visited by applicants, a notice informing applicants of the provisions of the Ordinance. Union employers must also send a copy of that notice to each labor union or representative of workers with which they have a collective bargaining agreement.
No Retaliation; Enforcement
The Los Angeles Ordinance prohibits retaliation against individuals who assert their rights under the law. Also, applicants may file civil lawsuits for Ordinance violations, but only after completing an administrative enforcement process through the city’s Department of Public Works. The city will only issue written warnings for violations of the Ordinance until July 1, 2017; thereafter, employers may be fined up to $500 for a first offense, $1,000 for a second offense, and $2,000 for a third offense.
Employers with 10 or more employees who work in Los Angeles should act now to ensure that their hiring practices are compliant with the new Ordinance by January 22, 2017. Here’s a quick to-do list:
- Remove criminal history inquiries from all application forms and ensure such questions are removed from the interview process (unless an exemption applies).
- Implement procedures for conducting “written assessments” and following the Fair Chance Process, as required by the Ordinance prior to withdrawing a job offer based on criminal history.
- Include the required language in job solicitations and advertisements.
- Post the new workplace notice. We expect that it will be available on the City of Los Angeles' website sometime in the next few weeks.
- Train all managers and HR personnel involved in the hiring process on the new requirements and procedures.
Click here to read the new ordinance.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, wage and hour class actions, trials, appeals, compliance advice and counseling. If you have questions about these developments or other workplace obligations, please contact us at (415) 464-4300.
This Alert is published by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the Alert, and should not be considered legal advice.