Los Angeles Fair Chance Initiative for Hiring

LA City HallLos Angeles City begins enforcement on July 1, 2017 of its Fair Chance Initiative for Hiring Ordinance that prohibits employers from seeking criminal background information prior to offering a job to applicants.  The ordinance was effective in January 2017, but to give employers time to become compliant with the new hiring prohibitions, the City delayed enforcement until July 1.  This Friday’s Five discusses five issues Los Angeles City employers need to understand prior to the July 1 deadline:

1. Employers are prohibited from inquiring into a job applicant’s criminal history until a conditional offer of employment has been made.

Employers cannot conduct any “direct or indirect” activity to gather criminal history from or about any applicant using any form of communication, including on application forms, interviews or Criminal History Reports.  This includes searching the internet for information pertaining to the applicant’s criminal history.

2. Review the Fair Chance Initiative for Hiring Ordinance Guideline for Employers

The City published a flow-chart setting out a guideline for employers to follow to comply with the Ordinance.

Employers should review this flow-chart, review the Ordinance, and if they will be conducting background checks implementing processes to ensure they are complying with the Ordinance.

3. Post the notice to applicants and employees and ensure documents are retained for three years.

Employers are required to post a notice informing applicants of the law at each workplace, job site or other location in the City of Los Angeles under the employer’s control and visited by the applicants.

In addition, employers are required to retain applications and related information for three years.

4. Develop a process to comply with ordinance if revoking conditional offer based on criminal history report.

The City published a sample notice to rescind employment offer that employers can utilize to comply with the Ordinance after an employee’s criminal history background check reveals information that may allow the employer to revoke the conditional offer of employment.  The sample letter can be downloaded here.

The City also published an individual assessment and reassessment form for employers to use in conducting the required review of whether the employee’s criminal history is job-related and can be used to revoke the offer of employment.  Employers should review this document, understand the required steps to comply with these requirements, and seek help from qualified employment lawyers if/when this assessment must be done in making a determination of whether to revoke a job.

5. Place disclosures in all job-wanted ads to ensure compliance with ordinance.

The Ordinance requires that employers state “in all solicitations or advertisements seeking Applicants for Employment that the Employer will consider for employment qualified Applicants with Criminal Histories in a manner consistent with the requirements of this article.”

The City has proposed the following sample language to comply with this requirement:

We will consider for employment all qualified Applicants, including those with Criminal Histories, in a manner consistent with the requirements of applicable state and local laws , including the City of Los Angeles’ Fair Chance Initiative for Hiring Ordinance.

It is important to remember that this requirement applies to all online advertisements and solicitations.

Employers should review the City’s website for more information as well as the City’s Frequently Asked Questions.

I’m starting 2017 off with videos taken from my recent webinar discussing local minimum wage issues, California’s new employment laws, Los Angeles’ ban the box ordinance, the new Form I-9 required in 2017, and potential impacts President-elect Trump may have on employment laws.  Happy New Year!

California state and local minimum wage and paid sick leave laws in 2017

California’s new wage discrimination laws in 2017

Los Angeles bans employers from asking about criminal background information

New Form I-9 required in 2017

President-elect Trump’s impact on California’s employment landscape

Mayor Garcetti signed into law the “Los Angeles Fair Chance Initiative for Hiring” ordinance on December 7, 2016.  The law takes effect January 22, 2017.  The Mayor’s holiday gift to employers leaves only a couple of weeks to them to change applications and hiring processes to comply with the new ordinance.  This Friday’s Five lists five aspects of the ordinance employers operating in the City need to understand:

1. New law applies to employers with 10 or more employees.

The new law applies to any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City of Los Angeles and employs ten or more employees.  The owners, management, and supervisory employees are counted when determining if the employer has ten employees.

Employers cannot inquirer into criminal backgrounds of applicants until after a conditional offer of employment is made.

2. The ordinance limits employers’ ability to gather information about applicants’ criminal history.

Employers cannot conduct any “direct or indirect” activity to gather criminal history from or about any applicant using any form of communication, including on application forms, interviews or Criminal History Reports.  This includes searching the internet for information pertaining to the applicant’s criminal history.

3. Employers must revise applications to remove any questions seeking information about criminal history.

The ordinance provides: “An Employer shall not include on any application for Employment any question that seeks the disclosure of an Applicant’s Criminal History.”

4. Employers must comply with stringent notice and written obligations if employment is not offered to applicant based on their criminal history.

Employers can require disclosure of an applicant’s criminal history only after a conditional offer of employment has been made.  The only condition on the offer of employment can be the review of the applicant’s criminal background.  There cannot be any other conditions on the offer.

If the conditional offer is made, but employment is denied, employer must perform “written assessment that effectively links the specific aspects of the Applicant’s Criminal History with risks inherent in the duties” of the job.  In conducting the assessment, employers must consider the factors set forth by the U.S. Equal Employment Opportunity Commission and other factors set out by the City.

Prior to taking any adverse employment action against the applicant, employers are required to provide a “Fair Chance Process,” which includes a written notification of the proposed adverse action, a copy of the written assessment performed by the employer, and any other information or documents supporting the employer’s action.  The employer then must wait at least 5 business days for employee to provide additional information.  If the applicant provides additional information, the employer then must perform a written reassessment of the adverse action.  If the employer continues with the adverse action, it must provide the applicant with the written reassessment.

The process has many requirements employers must be careful to follow, and it is recommended that employers relying upon an applicant’s criminal background to deny employment should seek legal counsel to ensure compliance with the ordinance.

5. Employers’ other requirements to comply with the law

Some other obligations the ordinance creates for employers:

  • Employers “[s]hall state in all solicitations or advertisements… that the Employer will consider for employment qualified Applicants with Criminal Histories in a manner consistent with the requirements of this article.”
  • Post a notice informing applicants of the law at each workplace, job site or other location in the City of Los Angeles under the employer’s control and visited by the applicants.
  • Employers must retain applications and related information for three years.

Happy Friday!