July 22, 2024
Los Angeles County has taken California’s recent “Ban the Box” legislation to the next level. After passing earlier this year, the new Fair Chance Ordinance will take effect on Sept. 3, 2024.
This Ordinance creates stricter requirements for employers to promote fair hiring practices and increase the hiring of candidates with criminal histories. State law specifies that employers with fifteen or more employees must comply. However, the new Fair Chance Ordinance changes that for Los Angeles County employers.
This Ordinance affects all employers in the county with five or more employees. Employers affected must clearly state that qualified candidates with arrest or conviction records can still apply for employment.
These expectations apply to specific positions and detail any applicable restrictions in all job listings. Employers must provide a complete list of material duties for jobs for which a criminal record could directly impact employment eligibility. This list also applies to situations that could negatively impact employment, such as withdrawing a conditional job offer.
Ban the Box legislation prevents employers from inquiring about convictions on a candidate’s record until they have sent a conditional job offer. When the employer decides to run a background check, they must first offer a written statement to the applicant concerning the request. This statement should clarify the following:
- The job offer depends on the results of this screening,
- An explanation of the screening’s necessity and relevance to the job duties and
- A complete summary of the records covered in this screening (IE., criminal, educational, employment-related)
According to the Fair Chance Ordinance, employers cannot discriminate during background screening. Such discrimination includes the following:
- Judgment based on arrests without convictions;
- Involvement in deferral or diversion programs;
- Sealed, dismissed, or expunged convictions;
- Juvenile convictions;
- Non-felony marijuana possession convictions older than two years;
- Convictions older than seven years;
- Infractions (excluding certain driving infractions); and
- Convictions based on acts subsequently decriminalized.
Employers must assess the situation for each specific applicant. When doing so, they should supply a notice via mail and email before withdrawing a conditional offer based on the individual’s criminal history. The Fair Chance Ordinance requires the notice to state the intent to withdraw the conditional offer or take adverse action and clearly explain which convictions led to this decision.
It should also detail the candidate’s right to respond according to the legal process within the provided timelines. Employers must include a copy of the assessment and criminal background screenings for the applicant to review. The candidate can expect a five-day-timeline to respond, though they can request an extra five days if they need more time.
Employers must reassess their decision when an applicant disputes the employer’s assessment. However, they can still withdraw the offer or take other adverse actions. They must provide the following when they decide to move forward with the original decision:
- Provide a final notice containing a copy of the employer’s second assessment,
- The specific convictions that influenced the decision,
- How to challenge the employer’s decision,
- Clarification of the applicant’s right to file a complaint with the DCBA regarding ordinance violations and with the state’s Civil Rights Department for Fair Chance Act violations and
- If necessary, why delays occurred if the notice is any later than 30 days after the applicant’s first dispute date
The Fair Chance Ordinance requires employers to retain all employment applications and related documents for four years after receipt. They must also post a notice explaining this Ordinance in all workplaces in Los Angeles County and on company websites used by employees and job seekers. Failure to comply with the Fair Chance Ordinance can lead to fines of $5,000 to $20,000 from the Los Angeles County Department of Consumer and Business Affairs (DCBA). Furthermore, it offers the right of private action to applicants. As such, the DCBA could grant complainants the right to sue.
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