City of Los Angeles bans the box

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The City of Los Angeles recently passed the Fair Chance Initiative, a new ordinance banning the use of any questions regarding an applicant’s criminal history in the pre-offer stage of the hiring process. Effective January 22, 2017, employers cannot ask about a job applicant’s criminal history until a conditional offer of employment (conditioned only on an assessment of the employee’s criminal history and the job duties) has been made. This rule applies to any employer located or doing business in the City of Los Angeles who employs ten or more employees. The ordinance also provides a private right of action, and imposes penalties of up to $2,000 for repeat violations.

Employers must comply with notice and documentation requirements

Under this ordinance, before a covered employer may rescind a conditional job offer based on the applicant’s criminal history, the employer must perform a written assessment that links the applicant’s criminal history with risks inherent in the duties of the position sought. This assessment involves analysis that includes factors identified by the Equal Employment Opportunity Commission in its enforcement guidance on the use of arrest and conviction records in employment decisions, as well as other factors identified in guidelines promulgated by the designated administrative agency. An employer who wishes to rescind a job offer based on the applicant’s criminal history must provide the applicant with notice of its proposed action at least five days prior to taking such action, as well as the written assessment of factors leading to the decision. The applicant then may provide information regarding the accuracy of any criminal history or other information to demonstrate rehabilitation or other mitigating factors, and if such information is provided, the employer must then conduct a written reassessment. If after the reassessment, the employer still wants to rescind the offer of employment, it must provide to the applicant written notice of the adverse action with a copy of its reassessment.

Covered employers must also post notices of applicant rights under this ordinance, and maintain records for at least three years. In addition, the ordinance requires covered employers to state in all job advertisements and solicitations for employment that they will consider for employment qualified applicants with criminal histories “in a manner consistent with the requirements of this [Ordinance].”

Exceptions to these obligations

The ordinance does not apply to positions for which the employer is required by law to run a criminal background check or in which the applicant would be required to possess or use a firearm. It also does not apply to positions that the law prevents being held by an individual who has been convicted of a crime or to an employer who is prohibited by law from hiring an applicant who has been convicted of a crime. Speak to a dealer attorney to develop appropriate policies for utilizing this exception for your licensed sales people.

Action needed

Covered employers must ensure that their hiring process comports with this ordinance and that they do not consider any criminal history of an applicant until after providing a conditional offer of employment. Employers may wish to seek the assistance of counsel for the required assessment of any final hiring decisions that are impacted by an applicant’s criminal history, as well as make any necessary changes to their employment application forms, hiring policies, and required notices.