Los Angeles Fair Chance Initiative
(effective January 22, 2017)
In a last-minute dash, Mayor Eric Garcetti signed into effect the Los Angeles Fair Chance Initiative which became effective January 22, 2017. The new LA ordinance “prohibits employers from inquiring about criminal histories until a conditional job offer has been made”. So, what does this mean for employers doing business in Los Angeles?
Overview of the Elements of the New Los Angeles Ordinance
Applies to an individual, firm, corporation, partnership, labor organization, group of persons, association or other organization with 10 or more employees, located or doing business in the City of Los Angeles (thus, if 10 or more employees and perform any business or located in any of the defined areas in the City of Los Angeles).
Employers are now required to include in all job ads and solicitations for employment that they will consider qualified applicants with criminal histories for employment “in a manner consistent with the requirements of the Los Angeles Fair Chance Initiative.
Employers must provide notice to applicants by posting a notice about the law in a conspicuous place at every workplace, job site, or other City location under the employer’s control and visited by applicants.
Employers subject to collective bargaining must also send a copy of the notice to their respective labor unions.
Employers are prohibited from:
Note: Criminal history includes any information regarding felony or misdemeanor convictions from any jurisdiction resulting in the individual being fined, placed on probation, imprisoned, or placed on parole.
There are 4 exceptions to the ordinance, thus, employers are permitted to inquire prior to the conditional offer when:
For those employers electing to inquire about the applicant’s criminal history after the conditional offer is made AND obtains background results warranting an adverse action against the applicant, the “Fair Chance Process” kicks in. Under the ordinance, before taking any adverse action against an applicant, the employer must:
Employers using a consumer reporting agency to conduct their criminal background checks, are highly encouraged to concurrently engage the Fair Chance Process with the pre-adverse and adverse action requirements of both federal and state Fair Credit Reporting Act laws.
Employer are required to retain documents related to applicant employment applications and any written assessments and reassessments performed for three years.
It unlawful for an employer to take any adverse employment action against any employee for:
The law allows an individual to bring a civil action for violation of the ordinance, although requiring the individual to first report an administrative complaint to the DAA (Department of Public Works, Bureau of Contract Administration) within one year of the alleged violation.
Effective July 1, 2017, the DAA may impose a fine 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 violations of the law.
Fines may also be assessed against an employer for violations of the notice, posting, and record-retention requirements. These are each capped at $500 for each violation.
Employers subject to this new ordinance should:
As always, the Business & People Strategy Consulting Group is here to help California employers stay in business, be compliant, and avoid costly litigation. If you need assistance with compliance with this new ordinance (e.g., policies, procedures, etc.), please contact a member of our team today.
- Pre-employment inquiries and questions about an applicant’s criminal history are prohibited (this includes asking on applications);
- Written assessments and reassessments prior to taking adverse actions (i.e., not hiring, termination) against applicants based upon criminal history results;
- Maintaining related records for three years;
- Required verbiage in job ads related to the new ordinance;
- New posting and notice requirements for applicants; and
- Fines up to $2,000 if found to have retaliated against or taken adverse action against an applicant related to the ordinance.
Overview of the Elements of the New Los Angeles Ordinance
Applies to an individual, firm, corporation, partnership, labor organization, group of persons, association or other organization with 10 or more employees, located or doing business in the City of Los Angeles (thus, if 10 or more employees and perform any business or located in any of the defined areas in the City of Los Angeles).
Employers are now required to include in all job ads and solicitations for employment that they will consider qualified applicants with criminal histories for employment “in a manner consistent with the requirements of the Los Angeles Fair Chance Initiative.
Employers must provide notice to applicants by posting a notice about the law in a conspicuous place at every workplace, job site, or other City location under the employer’s control and visited by applicants.
Employers subject to collective bargaining must also send a copy of the notice to their respective labor unions.
Employers are prohibited from:
- Asking any question on a job application about an applicant’s criminal history;
- Asking about or requiring disclosure of the applicant’s criminal history during a job interview; or
- Independently searching the internet for criminal conviction information or running a criminal background check before a conditional offer of employment has been made.
Note: Criminal history includes any information regarding felony or misdemeanor convictions from any jurisdiction resulting in the individual being fined, placed on probation, imprisoned, or placed on parole.
There are 4 exceptions to the ordinance, thus, employers are permitted to inquire prior to the conditional offer when:
- The employer is required by law to run a criminal background check on an applicant to obtain information on an applicant’s conviction;
- The job sought requires the possession or use of a gun;
- A person who has been convicted of a crime is prohibited by law from holding the position sought; and
- The employer is prohibited by law from hiring an applicant who has been convicted of a crime.
For those employers electing to inquire about the applicant’s criminal history after the conditional offer is made AND obtains background results warranting an adverse action against the applicant, the “Fair Chance Process” kicks in. Under the ordinance, before taking any adverse action against an applicant, the employer must:
- Perform a “written assessment” that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position sought.
- Employers must, at a minimum, consider the factors identified by the Equal Employment Opportunity Commission (EEOC) and follow any rules and regulations issued by the Designated Administrative Agency (DAA) responsible for enforcement.
- Provide the applicant with (a) a written notification of the proposed action, (b) a copy of the written assessment, and (c) any other information or documentation supporting the employer’s proposed adverse action.
- Wait at least five (5) business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the employment position.
- If the applicant provides the employer with any information/documentation pursuant to the Fair Chance Process, the employer must consider that information and perform a “written reassessment” of the proposed adverse action.
- If the employer still elects to take the adverse action after such reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.
Employers using a consumer reporting agency to conduct their criminal background checks, are highly encouraged to concurrently engage the Fair Chance Process with the pre-adverse and adverse action requirements of both federal and state Fair Credit Reporting Act laws.
Employer are required to retain documents related to applicant employment applications and any written assessments and reassessments performed for three years.
It unlawful for an employer to take any adverse employment action against any employee for:
- Complaining to the city about the employer’s compliance or anticipated compliance with the ordinance, for opposing any practice made unlawful by the ordinance;
- Participating in proceedings related to the ordinance; or
- Seeking to enforce or assert his or her rights under the ordinance.
The law allows an individual to bring a civil action for violation of the ordinance, although requiring the individual to first report an administrative complaint to the DAA (Department of Public Works, Bureau of Contract Administration) within one year of the alleged violation.
Effective July 1, 2017, the DAA may impose a fine 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 violations of the law.
Fines may also be assessed against an employer for violations of the notice, posting, and record-retention requirements. These are each capped at $500 for each violation.
Employers subject to this new ordinance should:
- Revise employment applications by eliminating any questions about an applicant’s criminal background history.
- TRAIN anyone conducting interviews about the new ordinance, specifically prohibiting questions about criminal background history before the offer of employment is made.
- Do not inquire about criminal background history until AFTER an offer of employment is made. Keep in mind that these checks must still be made BEFORE the individual’s first day of employment.
- DRAFT a policy clearly defining what positions will be subject to criminal background checks, why the positions require the check, crimes that will result in adverse actions, why those crimes impact the position, and procedures for assessments and reassessments.
As always, the Business & People Strategy Consulting Group is here to help California employers stay in business, be compliant, and avoid costly litigation. If you need assistance with compliance with this new ordinance (e.g., policies, procedures, etc.), please contact a member of our team today.