On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the Fair Chance Initiative for Hiring Ordinance (the “Ordinance”), which imposes a number of restrictions on employers’ pre-employment screening practice.  Notably, the Ordinance prohibits Los Angeles employers from asking job applicants about their criminal history until after a conditional offer of employment has been made. The Ordinance, commonly referred to as Los Angeles’ “Ban the Box” law, goes into effect on January 22, 2017.  A copy of the new law can be found here.

Applicability:  The Ordinance applies to all private employers located in Los Angeles that employ ten or more employees, and it covers both applicants and incumbent employees.  The Ordinance does not apply to employers that are required by law to obtain information regarding an applicant’s conviction, or those that are prohibited by law from hiring an applicant who has been convicted of a crime.  It also does not protect individuals who cannot lawfully hold a position because of a criminal conviction regardless of whether the conviction has been expunged, judicially ordered sealed, etc., or individuals required to possess or use a firearm in the course of employment.  The Ordinance contains provisions regarding posting, notice, anti-retaliation and record retention requirements.

Unlawful Hiring Practices:  The Ordinance establishes a number of new unlawful practices and specifically prohibits employers from: (1) including a question on an employment application that seeks the disclosure of an applicant’s criminal history; (2) inquiring about or requiring disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant; and (3) taking adverse action against an applicant to whom a conditional offer of employment has been made based on the applicant’s criminal history unless the employer performs a compliant written assessment that links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought.

The employer must also provide the applicant a “Fair Chance Process” which is defined as an opportunity for an applicant to provide information regarding the accuracy of his or her criminal history that should be considered in the employer’s written assessment.  This process requires the employer to provide the applicant with written notification of the proposed adverse action, a copy of the written assessment performed and any other information or documentation supporting the employer’s proposed adverse action.  The employer shall not take an adverse action or fill the employment position sought by the applicant for a period of at least 5 business days after the applicant is informed of the proposed adverse action in order to allow the applicant to complete the Fair Chance Process, and shall consider any information provided and perform a written reassessment of the proposed adverse action.  If the employer, after performing the reassessment of the proposed adverse action, takes the adverse action against the applicant, then the employer shall notify the applicant of its decision and provide the applicant with a copy of the written reassessment.

Enforcement and Penalties:  An applicant or employee may report an alleged violation of the Ordinance within one year of the alleged violation to the City’s Department of Public Works, Bureau of Contract Administration (DAA).  The DAA will investigate the complaint and an applicant or employee may appeal the DAA’s final decision by filing a petition for writ of mandate in the Superior Court of the County of Los Angeles.  Penalties for violation can range from $500 up to $2,000 depending on the provision violated.  These penalties will become enforceable on July 1, 2017, prior to which the DAA will only issue written warnings.

Bottom Line:  Employers in Los Angeles should review and modify their employment applications and relevant employment forms, as well as their policies related to record retention, to ensure compliance.  In addition, employers should provide necessary training to personnel involved in the recruiting and hiring process.  Please feel free to contact one of our employment lawyers if you need further guidance.

Keesal, Young & Logan Employment Group

This information has been prepared by Keesal, Young & Logan for informational purposes only and is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between you and Keesal, Young & Logan. You should not act upon this information without seeking professional counsel.