Los Angeles Mayor Eric Garcetti has signed the Los Angeles Fair Chance Initiative for Hiring Ordinance (the “Ordinance”), limiting the practice of many employers to require prospective job applicants to provide criminal histories as part of information on their job application. These ordinances are commonly referred to as “ban the box” ordinances, because a check box was often found on employment applications requesting information about an applicant’s criminal history. The Ordinance took effect on January 22, 2017, with penalties and fines imposed starting July 1, 2017.
Under the Ordinance, private employers with 10 or more employees are prohibited from inquiring about criminal convictions until after a conditional offer of employment is made. Further, the conditional offer must be contingent only upon the assessment of the criminal history of the applicant and the duties and responsibilities of the position.
The Ordinance covers employers in the City of Los Angeles. Addresses can be checked here. Regarding who is covered by the Ordinance, the definition of “Employee” is any individual who “performs at least two hours a week on average each week within the geographic boundaries of the City [of Los Angeles].”
The Ordinance defines “Criminal History” as: “information regarding one or more Convictions… obtained from any source, including… a Criminal History Report.” The Ordinance includes as “Convictions” any record that an individual has been convicted of a felony or misdemeanor for which the person has been placed on probation, fined, imprisoned, or paroled. “Criminal History Report” is defined as “any criminal history report, including, but not limited to, those produced by the California Department of Justice, the Federal Bureau of Investigation, other law enforcement or police agencies, or courts, or by any consumer reporting agency or business or employment screening agency or business.” Under this definition, it is questionable whether Motor Vehicle Reports are included as “Criminal History Reports.”
The requirements of the Ordinance do not apply where: (1) the employer is required by law to obtain applicants’ criminal history information, (2) the applicant would be required to possess or use a firearm in the course of his or her employment, (3) the applicant is prohibited by law from holding the position sought, or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
Complying With the Los Angeles Ordinance
Under the Ordinance, employers must:
- State in all solicitations or advertisements seeking job applicants that the employer will consider for employment qualified applicants with criminal histories consistent with the Los Angeles Fair Chance Initiative;
- Post a notice in each workplace, and distribute a notice to all labor union representatives or other representatives of workers with whom the employer has a collective bargaining agreement or similar understanding or agreement;
- Refrain from asking, in any way, about an applicant’s criminal history until after a conditional offer of employment is made;
- Conduct an individualized written assessment for each applicant with a criminal history, comparing the applicant’s criminal history with the risks inherent in the duties of the position sought, and notify the applicant of any intent to withdraw a conditional offer based on the written assessment;
- Allow the applicant five business days to respond to the written assessment and to provide any additional information for consideration, conduct a written reassessment if additional information is provided, and notify the applicant of any final decision to withdraw a conditional offer; and
- Maintain records relating to applications, and any assessments or reassessments conducted, for a period of three years.
In performing the written assessment, employers must consider: (1) the time that has elapsed since the offense; (2) the individual’s age at the time of the offense; (3) circumstances surrounding the offense; (4) the number of offenses for which the individual has been convicted; (5) employment history before and after the conviction; and (6) evidence of rehabilitation, and other mitigating factors. Employers must consider any additional factors required by the administrative department tasked with promulgating guidance on the Ordinance, once available.
If after conducting a written assessment an employer wishes to withdraw the conditional offer, the employer must provide written notice to the applicant of the intent to withdraw the conditional offer, a copy of the written assessment, and any other information or documentation supporting the employer’s proposed decision. Employers must allow the applicant five business days to submit additional information or documentation for consideration. If additional information is provided, employers must perform a written reassessment. Only then may an employer withdraw a conditional offer by written notice to the applicant accompanied by a copy of the reassessment.
Penalties for Noncompliance
The Ordinance calls for the imposition of penalties and administrative fines, commencing July 1, 2017, as follows:
- For violations relating to applications procedures, employer assessment of criminal history, and retaliation: up to $500 for the first violation, up to $1,000 for a second violation, and up to $2,000 for each subsequent violation.
- For violations relating to notice and posting requirements and record retention: up to $500 for each violation.
Other Ban the Box Laws
The Equal Employment Opportunity Commission (“EEOC”) has a strong position on criminal background checks. While the EEOC does not require the same “Conditional Offer” process as the Los Angeles Fair Chance Ordinance, it does require an “individualized inquiry” when reviewing criminal history.
The California Department of Fair Employment And Housing (“DFEH”) has proposed regulations that mirror the EEOC guidance, finding that consideration of criminal convictions may violate the California Fair Employment and Housing Act (“FEHA”) by adversely impacting individuals based on protected characteristics, such as gender or race.
Other cities have similar ordinances, including:
Employers should review their applications to ensure that they do not seek any criminal history information from applicants, state the required disclosure in solicitations for employment, and post the required notices in the workplace. Employers who do seek criminal history must do so in compliance with the Ordinance. Employers should check with their third-party background check administrators to ensure compliance. Employers should train employees who interact with job applicants not to seek any information relating to applicants’ criminal histories until after a conditional offer of employment is made. This includes any search of Google, Facebook, or any other social media platform. Employers must carefully evaluate each applicant with a criminal history, and any decision not to hire an individual with a criminal history must go through the process of an individualized inquiry, examining whether the conviction is closely enough related to the actual duties and responsibilities of the position. This will require much more thorough consideration by employers.