Restrictions Meant to Prevent Discrimination in Application & Hiring Process
The City of Los Angeles will soon join a growing list of states, cities, and municipalities throughout the United States that restrict employers from asking job applicants about their criminal histories during the application process. With the adoption of the Fair Chance Initiative Ordinance (“Ordinance”), effective January 22, 2017, the City of Los Angeles aims to eliminate a barrier to employment for persons who have been convicted of crimes.
Fair Chance Ordinance
Currently, at least 9 states and almost a dozen cities have laws limiting the ability of private employers to inquire about applicants' criminal histories. These statutes and ordinances are sometimes referred to as “ban the box” laws because they prohibit the use of a criminal history “box” on job applications. Most “ban the box” laws require that employers wait until after an interview or conditional offer of employment to inquire about criminal history.
Now, Los Angeles has followed suit with its own Fair Chance Ordinance. California may soon follow, but currently, the state's “ban the box” law is applicable only to government agencies. In 2014, San Francisco enacted a Fair Chance Ordinance, which applies to employers with 20 or more employees.
The Los Angeles Fair Chance Ordinance applies to any employer with at least 10 employees that work two or more hours each week within the City of Los Angeles. The ordinance prohibits employers from asking or requiring disclosure of a job applicant's criminal history prior to a conditional offer of employment. This includes any question that seeks the disclosure of a job applicant's criminal history, such as a criminal history box on a job application or a question during an initial job interview.
The LA Fair Chance Ordinance also places additional obligations on employers with respect to advertisements and notices. Accordingly, employers must:
- state in every advertisement seeking applicants for employment that they will consider qualified applicants with criminal histories;
- prepare and post a notice informing applicants of the Fair Chance Ordinance's provisions in a conspicuous place at any location job applicants may visit; and
- send copies of the posted notice to every labor union with which they have a collective bargaining agreement.
Rescinding a Job Offer
The LA Fair Chance Ordinance also requires that employers wishing to rescind a job offer after learning of an applicant's criminal history would have to issue a written report showing linkage between the applicant's criminal history and risks inherent in the duties in the position sought. The report should include the nature of the offense and the time that has passed since the conviction or release from incarceration as well as the nature of the position. The employer must provide the report to the applicant, after which the applicant has five business days within which to appeal the decision by providing the employer with mitigating information or evidence of the history's inaccuracy. The employer must consider the applicant's response and complete a written reassessment. If the employer stands by its initial decision, it must thereafter inform the applicant in writing and provide a copy of the reassessment.
Employers also may not retaliate against an employee or applicant for reporting any alleged violation of the Fair Chance Ordinance or for participating in the Fair Chance Process.
Violations & Penalties
Employees or job applicants alleging violations of the Fair Chance Ordinance must bring claims to the Department of Public Works within one year of a violation. And beginning July 1, 2017, the Department can impose penalties and fines against an employer for violations of the Ordinance. The employer may be fined 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. Prior to July 1, 2017, the Department shall only issue written warnings for violations of the Ordinance—no monetary penalties will be assessed.
Recommendations for Los Angeles Employers
Los Angeles employers should take steps to ensure all questions in employment applications about criminal histories have been removed. Employers should also make sure that recruiters and interviewers also know not to make such inquiries. Further, as highlighted above, Los Angeles employers should include language in all solicitations or advertisements seeking applicants that you will consider qualified applicants with criminal histories in a manner consistent with the Los Angeles Fair Chance Initiative for Hiring.
Los Angeles employers are also well-advised to consult qualified employment counsel to ensure that they have proper procedures in place for dealing with applicants with criminal backgrounds. To get answers to your questions about LA's Fair Chance Ordinance, or to discuss your specific case, call us toll-free at (888) 500-8469 or click here to contact us regarding your case.