Los Angeles County Introduces Fair Chance Ordinance For Employers In Unincorporated Areas

On February 27, 2024, Los Angeles County adopted Ordinance No. 2024-0012, amending Title 8 of the Los Angeles County Code to implement the Fair Chance Ordinance for Employers. This "ban-the-box" ordinance, effective September 3, 2024, imposes obligations on employers in unincorporated areas of the County regarding fair hiring practices, particularly concerning the consideration of an applicant's criminal history during the hiring process.

Who does the ordinance apply to?

The ordinance applies to employers with five or more employees located or conducting business in unincorporated areas of Los Angeles County. It broadly defines "employment," encompassing various work arrangements, including temporary, part-time, contracted, freelance, and contingent work, as well as remote work within the County's unincorporated areas.

An "applicant" refers to an individual who submits an application or other relevant documents for employment with an employer. This definition also includes employees applying for a promotion within their current organization.

Employers are reminded that the City of Los Angeles maintains a separate Fair Chance Initiative for Hiring Ordinance relevant to applicants within the City.

What is the impact?

Employers are prohibited from inquiring about an applicant's criminal history before extending a conditional job offer unless legally required.

Are there any exceptions to the restrictions on criminal history inquiries?

Employers can inquire about criminal history if required by state, federal, or local law. Employers can consider criminal history if any law prohibits employing a person with a specific criminal history. Positions requiring possession or use of a firearm allow consideration of criminal history. Exceptions apply to positions as farm labor contractors. Employers can seek to hire individuals with criminal histories for positions related to government programs or candidates with "lived experience" in incarceration or the criminal justice system.

What is required in job postings?

Employers must include language in job postings stating that qualified applicants with arrest or conviction records will be considered for employment per the Fair Chance Ordinance and the California Fair Chance Act. They are prohibited from including language that may deter applicants with criminal histories from applying. Additionally, job postings must specify any local, state, or federal laws restricting hiring individuals with certain criminal histories.

When an employer plans to review an applicant's criminal history as part of a conditional offer of employment, they must include a comprehensive list of all material job duties specific to the position in job postings. This list should highlight any duties where the employer reasonably believes that the individual's criminal history could directly and adversely impact their ability to perform the job, potentially leading to the withdrawal of the conditional offer of employment.

What notices must applicants and workers receive?

If conducting a criminal background check after a conditional offer, employers must provide written notice informing applicants that a conditional offer of employment is contingent upon reviewing their criminal history.

The written notice must also include a statement justifying the review of criminal history for the specific job position. A general mention of "safety concerns" is insufficient. Good cause can be demonstrated if the employer faces significant risks to business operations or reputation without the review or if the review is necessary due to safety concerns related to staff, employees, contractors, vendors, associates, clients, customers, or the general public that are supported with justification.

If an employer reviews additional information beyond criminal history during the background check process for a conditional offer of employment, the notice must include a complete list of all types of information being reviewed. This includes education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, and medical examinations.

Employers must also post workplace and website notices informing applicants and employees about the provisions of this ordinance. The Department of Consumer & Business Affairs (DCBA) will provide a suitable notice for posting in English, Spanish, and other relevant languages.

When can an employer ask an applicant about their criminal history?

After extending a conditional offer of employment, employers cannot ask applicants for information about their criminal history, unresolved arrests, or prior convictions until the employer has received the criminal background check report. Employers must first provide the applicant a copy of their criminal background check report before discussing any criminal history information, requesting a criminal history questionnaire, or further details.

What types of criminal history are employers restricted from considering?

Employers are restricted from considering certain types of criminal history, such as arrests not followed by conviction, participation in diversion programs, sealed or expunged convictions, juvenile records, and non-felony marijuana convictions that are two or more years old.

Only convictions occurring within seven years of the date of disposition may be considered unless the applicant is involved in roles related to minors or dependent adults or was convicted of specific crimes of dishonesty if the applicant will provide services related to the administration of public funds or benefits.

Employers cannot consider offenses other than felonies or misdemeanors, except for infractions related to an applicant's driving record if driving is a significant part of the job. Additionally, convictions stemming from conduct that has been decriminalized since the date of the conviction, including noncommercial cannabis use and cultivation, are excluded from consideration.

What is the sequence of events when considering an applicant's criminal history?

When considering an applicant's criminal history, employers must conduct an initial individualized assessment to determine if the history has a direct, adverse bearing on the applicant's ability to perform job duties. If they intend to take adverse action based on this assessment, they must follow a specific process, including providing a preliminary notice of adverse action to the applicant, allowing them time to respond, and conducting a second individualized assessment if the applicant provides additional information.

How does an employer conduct an initial individualized assessment?

The initial individualized assessment requires employers to evaluate an applicant's criminal history to determine if it directly and adversely impacts their ability to perform job duties. Factors considered in this assessment include:

• Nature and gravity of the offense or conduct (e.g., harm to property or people).

• Time elapsed since the offense or completion of the sentence.

• Specific job duties and whether similar offenses could occur.

• Any evidence of rehabilitation or mitigating circumstances provided by the applicant.

If an applicant holds a license, certificate, or similar credential required for the job position, it is presumed that their criminal history is not directly adverse to the job duties. To challenge this presumption, the employer must provide a written explanation in the initial individualized assessment. This explanation should demonstrate that the criminal history significantly outweighs the credentials obtained by the applicant for the job.

What happens if the employer intends to withdraw a conditional offer of employment because of the initial individualized assessment?

After conducting the initial individualized assessment, if the employer intends to withdraw a conditional offer of employment or take adverse action, they must provide the applicant with a preliminary adverse action notice. The notice must be sent via regular mail and email (if available) and include:

• Notice of the intent to withdraw the offer or take adverse action due to criminal history.

• Explanation of the applicant's or employee's right to respond before the decision becomes final.

• Details about waiting periods and response timelines, which must be displayed in bold font, underlined, or in all capital letters.

• Mention that the response can include evidence challenging the accuracy of the criminal background check report or voluntary submission of evidence related to rehabilitation or mitigating circumstances.

Alternate procedures exist for job positions where an employer is legally required to exclude or restrict individuals with specific criminal histories or convictions. The explanation provided to the applicant in the preliminary notice is limited to:

• Evidence challenging the accuracy of the criminal background check report or other criminal history information.

• Explanation addressing criminal background check reports and other criminal history information discrepancies.

The notice must also include:

• A copy of the initial individualized assessment.

• Notice of the disqualifying convictions that form the basis for the intended adverse action.

• Copies of any criminal background check reports obtained by the employer and other relevant information from sources like internet searches, court records, news articles, and social media.

How long does an applicant have to respond to the preliminary adverse action notice?

After receiving the preliminary notice of adverse action, the applicant has at least five business days to respond. If the individual disputes the accuracy of the criminal background check report or criminal history information, is obtaining evidence to support their assertion, or needs additional time to provide written evidence of rehabilitation or mitigating circumstances, then they must be given ten additional business days to respond to the preliminary notice.

An employer must allow the applicant to present evidence of rehabilitation or mitigating circumstances orally upon request. The request must be made within five business days of receiving the preliminary adverse action notice. The meeting between the applicant and the employer must occur within ten business days of the applicant's oral presentation request.

Evidence of rehabilitation or mitigating circumstances is optional and may be voluntarily provided by the applicant. Employers cannot require specific types of additional evidence or documents related to rehabilitation or mitigation.Employers must consider all information and documents (written or oral) submitted by the applicant before making a final decision or taking adverse action.

What happens if an applicant voluntarily provides written or oral evidence of rehabilitation or mitigating circumstances concerning their criminal history?

A second individualized assessment is required if an applicant provides evidence of rehabilitation or mitigating circumstances. The second individualized assessment, documented in writing, evaluates whether the individual's criminal history directly impacts their ability to perform job duties. Factors considered include:

• Nature and gravity of the offense or conduct (including harm to property or people).

• Time elapsed since the offense or sentence completion.

• Specific job duties and potential recurrence of circumstances related to the criminal history.

• Evidence of rehabilitation or mitigating circumstances (provided in any form).

• Documents disputing the accuracy of the criminal background check report or explaining criminal history.

What happens if the employer decides to take a final adverse action, such as withdrawing the conditional offer of employment, after conducting the second individualized assessment?

After the second individualized assessment, if the employer decides to withdraw the conditional offer of employment or take a final adverse action, they must notify the applicant in writing via regular mail and electronic mail (if available). The notice must include:

• Notice of the final decision to withdraw the offer or take adverse action.

• Copy of the second individualized assessment.

• Disqualifying convictions forming the basis for the final adverse action.

• Information about any existing procedure for the applicant to challenge the decision or request reconsideration.

• Notice of the right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs (DCBA) and the state's Civil Rights Department.

• If the final notice is provided more than thirty (30) calendar days after the applicant's timely response to the preliminary notice, the employer must justify the delay in the final notice. Reasons may include business or personal emergencies or circumstances beyond the employer's control.

Employers cannot make a final adverse action decision or fill the employment position until five business days have passed since the applicant received the preliminary notice of adverse action.

How does an employer determine when a worker has received a notice?

Concerning the timelines for notices described as part of the preliminary adverse and final adverse action process, if notice is sent without delivery confirmation, it's deemed received five days after mailing within California, ten days outside California, and twenty days for international addresses. Email notices are considered received two business days after being sent, but response timelines are based on the mailing date. Responses from applicants follow the same timelines as employer notices and can be sent via mail or email.

Can an employer withdraw an offer of employment because of a delay in the criminal background check?

Employers cannot solely rescind or withdraw a conditional offer of employment due to delays in receiving a requested criminal background check report. However, employers can take adverse action if waiting would cause an undue burden on business operations and if ten business days have passed since the request. Employers must inform the applicant in the preliminary notice of adverse action, explaining the undue burden and following notice procedures.

How long must an employer retain records concerning the criminal history check?

Employers must retain all relevant records, including job postings, applications, job offers, individualized assessments, notices, withdrawal letters, and any related correspondence, for at least four years after receiving an application.

What happens if an employer does not comply with the ordinance?

The ordinance authorizes public and private remedies for violations, including civil claims.

What can employers do to prepare for the ordinance?

Employers are encouraged to review and update their hiring practices, including job applications, postings, and background check procedures, to ensure compliance with the ordinance and existing employment laws.

Release Date: April2, 2024