Criminal Background Checks: Banning the Box in Los Angeles
Employer Update 02.09.17
The City updated its website with further information and resources for both Private Employers and City Contractors, including official notices for applicants and employees, sample letters and rules for implementing the Fair Chance Initiative for Hiring Ordinance.
Los Angeles City is on its way to approve a new Ordinance prohibiting employers with 10 or more employees from including on any application for employment any question that seeks the disclosure of an applicant’s criminal history. The Ordinance was approved on Wednesday, November 30, 2016 and is rescheduled for a second reading on December 7, 2016 (commentators say this second hearing is merely a formality).
More commonly known as the Ban the Box or Fair Chance Initiative, the Ordinance aims to reduce recidivism by providing more job opportunities to those with a criminal history, from relapsing into criminal behavior.
Ban the Box’s Primary Parameters
Who May Be Held Liable? The Ordinance defines “Employer” as any “individual, firm, corporation” etc., that is located or doing business in the City and that employs 10 or more employees. The definition also includes owners, management, supervisors and employment agencies.
No Inquiry Permitted Until a Conditional Offer of Employment is Made. An employer may not, at any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant.
Notice to Employee before an Adverse Action Is Required. If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and allows the applicant an opportunity to provide information regarding the accuracy of his/her criminal history or information regarding other factors that should be considered.
These include mitigating factors or evidence of rehabilitation. The notice requirements also include preparation of written assessment and reassessment by the employer that links the aspects of the criminal history with risks inherent in the duties of the position.
Notice Requirements in Job Posts. Any job posts or employment ads must include a statement that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of the Los Angeles Fair Chance Initiative for Hiring.
Additionally, employers are required 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 visited by applicants.
Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.
Exceptions. The criminal history inquiry prohibition, the assessment and reassessment requirements, and the duty to give notice to applicants in all solicitations or advertisements seeking applicants do not apply if: (1) the employer is required by law to obtain information regarding conviction; (2) the position requires possession or use of a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the Applicant, and; (4) an employer is prohibited by law from hiring an applicant who has been convicted of a crime.
Fines for Failure to Comply Will Be Imposed This Summer. As of July 1, 2017 the City may impose fines of up to $500 for failure to (1) provide notice to applicants in solicitations or advertisements; (2) post notice in a conspicuous place; or (3) retain records as required. For any other violation of the Ordinance, the City may impose a fine of 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 violation. Administrative fines paid by the employer may be awarded to the applicant or employee, up to a maximum of $500 per violation.
Approximately half of America’s states have Ban the Box laws, though most, including California, currently apply only to public employers.
Tal Burnovski Yeyni is an attorney in our Employment Practice Group.