Executive Summary: The City of Los Angeles recently enacted its own Ban-the-Box law, designed to prevent employers with at least 10 employees from inquiring into or requiring an applicant to disclose their criminal history until a conditional offer of employment has been made. The law is expected to go into effect on January 22, 2017.
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed into law the Los Angeles Fair Chance Initiative, which bans certain employers from inquiring into or requiring an applicant to disclose their criminal history until the employer makes a conditional offer of employment to the employee. The ordinance covers employers with at least ten or more employees working within Los Angeles city limits. The law also provides applicants/employees with a private right of action, and imposes penalties of up to $2,000, depending on the nature of the violation.
Certain exceptions apply. For example, the ordinance does not apply to positions for which the employer is required by law to run a criminal background check or in which the applicant would be required to possess or use a firearm. Additionally, the ordinance does not apply to positions that an individual who has been convicted of a crime is prohibited by law from holding or to an employer who is prohibited by law from hiring an applicant who has been convicted of a crime.
The ordinance also imposes certain requirements on the use of an applicant’s criminal history prior to rescinding a conditional job offer or taking other adverse actions. Specifically, the employer must perform a written assessment that links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the position sought by the applicant. At a minimum, the employer must consider factors identified by the U.S. Equal Employment Opportunity Commission and other factors promulgated by the City of Los Angeles. Further, the employer must provide the applicant with an opportunity to provide information or documentation regarding the accuracy of any criminal history or other information to demonstrate rehabilitation or other mitigating factors. This includes providing notification of the proposed action and waiting at least five business days for the applicant to provide any information that may allow the employer to reassess the proposed action.
Bottom Line: The new law will impact employers who regularly use criminal background checks in their hiring process. Given the ordinance’s stringent prohibitions on the use of an applicant’s criminal history to bar employment, it is highly recommended that any employer who maintains a blanket no-hiring policy for persons with criminal convictions in Los Angeles have their policies evaluated for compliance.
If you have any questions regarding this issue, or other labor or employment related issues, please feel free to contact the author of this Alert, David Cheng, dcheng@fordharrison.com, who is an attorney in our Los Angeles office. You may also contact the FordHarrison attorney with whom you usually work.