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.