Is your organization located in or doing business in the City of Los Angeles? Does your organization have 10 or more employees who spend time working there? If yes to both, it is time to take a look at your employment application and hiring practices with fresh eyes.
- The City of Los Angeles joined the growing movement to curb use of an applicant's criminal history in hiring decisions.
- Inquiries into criminal history can now only be conducted post-offer.
- Adverse decisions based on a criminal history must be supported by a written assessment linking specific aspects of the crime with inherent risks of the position's job duties.
The City of Los Angeles recently passed the Los Angeles Fair Chance Initiative for Hiring (Ban the Box), Ordinance No. 184652, effective January 22, 2017. The ordinance is part of a growing, nationwide movement to curb the use of an applicant's criminal history in making hiring decisions. Though cities like New York and San Francisco, and even the federal government, beat Los Angeles to the punch in implementing various regulations restricting the use of background checks and consideration of criminal convictions in the hiring process, the Los Angeles ordinance is among the most demanding.
The ordinance applies to private employers located or doing business in Los Angeles with 10 or more employees. It prohibits them from inquiring about a job applicant's criminal history unless and until a conditional offer of employment has been made to the applicant.
Key provisions of the ordinance to keep in mind as you analyze your own practices are as follows:
Is Your Company Impacted by This Ordinance?
A covered employer is one which:
- Is either located in the City of Los Angeles or is doing business in the city; and
- Employs 10 or more "employees." Under the ordinance, an "employee" is an individual who performs on average at least two hours of work each week within city boundaries for a covered employer.
These definitions are important when analyzing whether your organization must comply with the ordinance. For example, a company may be covered by the ordinance even if it does not have a brick and mortar location in the city. The company will be subject to the ordinance if it has sufficient business activities within the city to be considered "doing business" here, and if 10 employees drive into the city for an average of only two hours of work per week to conduct business. Therefore, companies with facilities outside Los Angeles are advised to assess their practices and workforce to determine whether the ordinance applies, particularly if some of their employees routinely travel into the city for sales or other client-related visits.
Required Changes in the Application and Hiring Process
All covered employers must ensure their application materials exclude questions soliciting the disclosure of an applicant's criminal history. Covered employers also must not otherwise inquire about or require applicants to disclose their criminal history unless and until a conditional offer of employment has been made. This prohibition includes "off the record" diligence activities and oral questions during in-person interviews. Once a conditional offer has been made, the employer may then inquire into the applicant's criminal history. The employer may not revoke the applicant's offer based on his or her criminal history without following the Fair Chance Process described below.
Employer's Written Assessment and the Fair Chance Process
The Fair Chance Process requires a covered employer to do all of the following before it takes any adverse action based on the criminal history of a particular applicant to whom a conditional job offer was made:
- Written Assessment: Upon receiving criminal history information, the employer must perform a written assessment that "effectively links the specific aspects" of the applicant's criminal history with inherent risks in the applicant's potential job duties. As part of this assessment, employers should consider-at a minimum-the factors identified by the Equal Employment Opportunity Commission, Enforcement Guidance No. 951.002 regarding job-relatedness and business necessity, as well as any rules or guidelines eventually issued by the city's enforcement agency. Ideally, the assessment should state all of the employer's business justifications for rescinding the applicant's job offer based on his or her criminal history.
- Five-Day Waiting Period: The employer's written assessment must be provided to the applicant. It must state the proposed adverse action and disclose any other documents or information relied on by the employer (e.g. background check or criminal history record) in reaching its conclusion. Once notice is provided to the applicant, the employer must keep the position open and cannot render a final decision regarding the applicant's job offer for at least five business days.
- Written Reassessment: During the five-day waiting period, an applicant may provide the employer with additional information or documentation to clarify, rebut or otherwise demonstrate mitigating circumstances regarding his or her criminal history. The employer must review and consider any information provided and perform a written reassessment of the proposed adverse action.
- Notice of Final Decision: If the employer decides to move forward with the adverse action despite the reassessment, it must notify the applicant of the final decision and provide a copy of the reassessment.