September 10, 2024
As of September 3, 2024, new requirements regarding the use of criminal history have taken effect for employers in unincorporated regions of Los Angeles County. These requirements come from the Los Angeles County Fair Chance ordinance for Employers (FCO), which the Los Angeles County Board of Supervisors adopted on February 7, 2024.
The FCO will introduce restrictions on how employers can inquire into an individual’s criminal history during the hiring process. This law expands upon the state’s existing ban-the-box laws, known as the Fair Chance Act, with several significant compliance requirements. For example, the FCO requires every job posting to include specific language. Other examples include timing requirements for when employers may inquire about criminal history and notice requirements for when employers intend to take adverse action based on prior criminal history.
Over 65% of Los Angeles County is unincorporated, but it is essential to determine whether these new regulations apply before taking further action. As such, employers in Los Angeles County should know that the FCO applies only to those in unincorporated areas. It would not apply to incorporated areas like Los Angeles, which have Fair Chance ordinances with similar requirements.
The first regulation to consider concerns job advertisements. All job postings must include language “stating that qualified applications with arrest or conviction records will be considered for employment in accordance with the Los Angeles County Fair Chance Ordinance for Employers and the California Fair Chance Act.” The FCO also prohibits employers from inquiring about a job applicant’s criminal history until making a conditional job offer unless required.
Once an employer makes a conditional job offer, they may conduct a criminal background check. Employers may conduct a criminal background check after making a conditional job offer. However, they must provide the job applicant with a written notice before doing so. The notice must state the following:
- “A statement that the Conditional Offer of Employment is contingent upon the review of the individual’s criminal history.
- A statement that the employer has good cause to conduct a review of criminal history for the specific job position, with supporting justification provided in writing. General statements to justify a criminal history check, such as for “safety concerns,” do not meet this requirement and require more detailed justification.
- Discussion of criminal history can only occur after the criminal background check is completed and a copy is provided to the candidate.”
After completing the criminal background check, the employer must assess the individual’s criminal history individually. This step determines if it has a “direct, adverse, and negative bearing on the person’s ability to perform the job duties such that it justifies denial of the job position or adverse action.” Employers intending to take adverse action based on this information must provide the job applicant with a preliminary notice of adverse action.
This notice should explain the applicant’s right to respond before the employer takes adverse action. If the job applicant responds to the preliminary notice, the employer must perform a second individualized assessment. Should the employer maintain the decision to take adverse action after this assessment, they must provide a final notice to the applicant. Employers should carefully comply with the FCO to avoid administrative penalties, possible action against the business’s licenses, and potential civil liability.
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