City of Los Angeles Adopts Ban on Criminal History Questions to Applicants

On December 7, 2016, the Los Angeles City Council approved the Fair Chance Initiative for Hiring Ordinance, colloquially known as the “Ban the Box” law.  The Ordinance will prohibit employers with 10 or more employees (including owners and managers) located in or doing business in the City, and City contractors, from asking applicants about their criminal conviction history until the employer makes a conditional offer to the applicant.

The Ordinance will now be sent to Mayor Eric Garcetti for his signature.  The Ordinance is expected to take effect January 1, 2017.  Los Angeles joins the City and County of San Francisco as jurisdictions that have adopted “ban the box” ordinances in California. Compton and Richmond implemented ban the box rules for city contractors.

The Los Angeles Ordinance bans the “check box” or other questions on a job application regarding criminal convictions.  The Ordinance also prohibits employers from inquiring about such convictions by any other means until a conditional employment offer is made.  The conditional offer must be conditioned “only on an assessment of the applicant’s criminal history” and the duties and responsibilities of the position.

Employers seeking to rescind a job offer after learning of an applicant’s criminal history will be required to prepare a written assessment.  The assessment must identify links between the applicant’s criminal history and risks inherent in the duties of the position, considering factors identified by the federal Equal Employment Opportunity Commission in assessing criminal history of applicants and employees.  The employer must then proceed through the “Fair Chance Process.”  The employer must provide the written assessment to the applicant and not take adverse action against the applicant or fill the position for at least five business days after the applicant is advised of the proposed adverse action.  If the applicant responds with new information, the employer must then reassess the adverse action and prepare a written reassessment.  If the employer proceeds with the adverse action against the applicant, the employer must provide the applicant with a copy of the reassessment.

The Ordinance requires employers to state in all solicitations or advertisements seeking applicants for employment that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance.

The Ordinance requires employers to post a notice informing applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site, or other location in the City under the employer’s control and visited by applicants.  The Ordinance also requires employers to send a copy of such notice to each labor union or representative of workers with which the employer has a collective bargaining agreement that is applicable to employees in the City.

Employers must retain records and documents related to applications and the written assessments and reassessments for three years following receipt of the application.

Exceptions from the ban include: employers required by law to obtain information regarding a conviction of an applicant; jobs which require employees to possess a firearm; where individuals convicted of crimes are prohibited by law from holding the position sought by the applicant; and where the employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Violations would carry a $500 penalty for a first offense, $1,000 for a second offense and $2,000 for a third offense.  Fines will not be imposed until July 1, 2017.  Until that time the City will issue written warnings.

Applicants may also file civil lawsuits to enforce their rights under the Ordinance, but only after notifying the City’s Designated Administrative Agency and completing the administrative enforcement process or receiving a hearing officer’s decision regarding an alleged violation.

Employers located in, or doing business in, Los Angeles should review their application forms and hiring practices to ensure criminal history questions are not asked until a conditional offer is made. Employers may contact the authors or their employment law counsel at AALRR to assist them in complying with this new Ordinance or with any questions.

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