The City of Los Angeles is joining a growing list of cities and states to “ban the box” by removing questions about job applicants’ criminal histories from job applications. The recently adopted “Fair Chance Initiative” (the “Ordinance”) will prohibit Los Angeles employers from inquiring about an applicant’s criminal history or from performing any form of a criminal background check until after a conditional offer of employment has been made. The new law will go effect January 2017.
Coverage
The Ordinance applies to city contractors and private employers with 10 or more employees. The restriction broadly applies to work that is temporary or seasonal, part-time, contracted or contingent, commission-based, filled through a temporary or employment agency, and job training positions. The Ordinance does not apply where a clean criminal history is required by law for the position or where an applicant would be required to carry a firearm in the course of employment.
Unlawful Hiring Practices
Under the Ordinance, an employer is prohibited from checking an applicant’s criminal background until a conditional offer of employment is made. Further, the offer must be conditioned only on the results of the background check. Once an offer is made an employer may perform a criminal background check using any mode of communication intended to gather criminal history information, such as application forms, interviews, and criminal history reports.
Written Assessment
An employer cannot take “adverse action” against an applicant based on the applicant’s criminal history without first performing a written assessment relating duties of the position to specific aspects of the applicant’s criminal history. The “Fair Chance Process” requires an employer to provide the applicant with notice of the proposed adverse action and the written assessment. The employer must wait at least five business days before taking the adverse action to allow the applicant to provide mitigating information and then reassessing the application.
Assessment factors may include:
- the time that has elapsed since the offense
- the individual’s age at the time of the offense
- circumstances surrounding the offense
- the number of offenses for which the individual has been convicted
- employment history before and after conviction
- evidence of rehabilitation
Notice and Posting Requirements
- All job advertisements must state that qualified applicants with criminal histories will be considered in a manner consistent with the requirements of the Ordinance.
- Employers must post in the workplace a notice informing applicants of the provisions of the Ordinance.
- All records related to applications and assessments must be retained for three years.
Enforcement and Penalties
The Ordinance prohibits retaliation against individuals who assert their rights under the Ordinance. An applicant or employee has one year to file a complaint for a violation of the Ordinance. The Ordinance also provides a private right of action against a covered employer once administrative remedies are exhausted.
Penalties and administrative fines for violations are up to $500 for the first violation, up to $1,000 for the second violation, and up to $2,000 for the third and subsequent violations. Violations of the notice and record retention requirements are up to $500 per violation. Civil penalties will not be imposed for violations before July 1, 2017. Meanwhile, violations may result in a written warning.
Next Steps
Employers in Los Angeles should check employment applications and employment forms to ensure compliance with the law. Employers should also ensure that recruiting personnel are aware of the Ordinance and that the notice, when it becomes available, is posted in the workplace.