On February 27, 2024, Los Angeles County announced a new Fair Chance Ordinance. This ordinance is set to take effect on September 3, 2024, and expands upon California's existing "Ban the Box" law by introducing additional requirements for employers.
Scope
The ordinance applies to employers with five or more employees with at least one working within the unincorporated areas of Los Angeles County. This broader application, compared to state law which generally applies to employers with 15 or more employees, means that smaller businesses will also need to comply with these new requirements.
Job Postings
Under the Ordinance, employers must:
- State that qualified applicants with arrest or conviction records will be considered for employment.
- Specify any laws that restrict or prohibit hiring individuals with certain criminal histories.
- Include a list of all material job duties for positions where a criminal background may directly and negatively impact employment, potentially leading to the withdrawal of a conditional job offer.
Conditional Offer Letters
The ordinance introduces several changes regarding how employers make conditional job offers. Aligning with the statewide Fair Chance Act, it prohibits employers from asking about criminal convictions until after a conditional job offer has been made. If an employer plans to conduct a background check at this stage, it must provide written notice containing:
- A statement that the conditional job offer depends on the review of the applicant's criminal history.
- An explanation of the employer's justification for reviewing the applicant's criminal history, detailing why it is relevant to the job position.
- A comprehensive list of all information and history types that the employer will review, such as education, social media history, employment history, driving history, reference checks, drug testing, etc.
The ordinance prohibits employers from considering: (1) arrests not followed by conviction (although unresolved arrests can be considered); (2) referrals to or participation in a diversion or deferral of judgment program; (3) convictions that have been sealed, dismissed, expunged, etc.; (4) juvenile records; (5) non-felony convictions for possession of marijuana that are more than two years old; (6) any conviction more than seven years old; (7) infractions, with the exception of some driving infractions; and (8) convictions arising out of conduct that has been decriminalized since the conviction.
Individualized Assessment and Preliminary Notice of Adverse Action
Employers must conduct an individualized assessment before rescinding a conditional job offer based on a criminal record. If an employer intends to withdraw a conditional offer or take any other adverse employment action, it must provide the applicant or employee with a preliminary notice of this action. This notice must be sent via both regular mail and email, if an email address is available, and include the following information:
- Notice of intent to withdraw the conditional offer of employment and/or take any other adverse employment action due to criminal history.
- An explanation of the applicant's right to respond before the decision is finalized, including the specified waiting periods and timelines for response as outlined in the ordinance.
- A copy of the initial individualized assessment.
- Notice of the specific convictions that are the basis for the adverse action.
- A copy of the criminal background check report and any other information related to the applicant's criminal history that the employer considered, such as internet searches, news articles, and social media content.
Procedures for Applicant Challenges
One of the key features of the ordinance is the creation of clear procedures that allow applicants to contest decisions made based on their criminal history. Specifically, the ordinance sets a defined period, five days, during which applicants and employees can challenge the accuracy of the criminal history data or present evidence of rehabilitation and mitigating factors. If the applicant or employee disputes the accuracy of the background check and notifies the employer in writing, or if they need additional time to gather written evidence of rehabilitation or mitigating circumstances, they are granted at least ten additional business days. Alternatively, this time can be used to present evidence of rehabilitation or mitigating circumstances in person during a meeting with the employer.
Second Individualized Assessment and Notice of Final Decision
If an applicant disputes the information in a timely manner, the employer is required to conduct a second individualized assessment. If, after performing the second individualized assessment, the employer makes a final decision to withdraw the conditional offer or take an adverse employment action, the employer must provide the applicant with a notice of final decision. The final notice must contain the following:
- Notice of final decision.
- A copy of the second individualized assessment.
- Notice of the disqualifying convictions that are the basis of the adverse action.
- Information regarding any existing procedure the employer has for the applicant or employee to challenge the decision or to request reconsideration.
- Notice of the applicant or employee’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs (“DCBA”) regarding violations of the ordinance and the state’s Civil Rights Department regarding violations of the Fair Chance Act.
- If the final notice is provided more than 30 days after the applicant’s timely response to the preliminary notice of adverse action, it is presumed to be untimely, and the employer must explain the delay.
Postings and Records Retention
The ordinance contains certain notice and records retention requirements. It requires that employers post a notice of the ordinance at every worksite in unincorporated Los Angeles County and on Company webpages frequently visited by their employees or applicants.
The ordinance also requires employers to preserve all documents related to the ordinance for four years following the receipt of the applicant’s employment application. This includes job solicitations, postings, announcements, advertisements, employment applications, individualized assessments, notices, conditional offers, rescission and/or withdrawal letters, and any correspondence related to the ordinance.
Penalties
The ordinance includes enforcement measures. It authorizes the DCBA to investigate violations and impose fines ranging from $5,000 to $20,000 for each infraction. Furthermore, the ordinance provides a private right of action to applicants and employees after the applicant or employee files a complaint with the DCBA and obtains a right-to-sue notice.
Takeaway
Employers with operations in unincorporated Los Angeles County should evaluate necessary changes with respect to when and how they inquire into criminal history during the hiring process.