Effective January 22, 2017, Los Angeles became the latest major city to "ban the box" and prohibit employers from obtaining information about an applicant's criminal history during the initial stages of employment. The Los Angeles Fair Chance Initiative for Hiring makes it unlawful for employers to inquire into an applicant's criminal history on an employment application or at any point during the interview process until after a conditional offer of employment is made.
The Initiative applies to all employees who perform, on average, at least two hours of work per week within the City of Los Angeles and who are entitled to the California minimum wage. An "employer" is defined by the Initiative to mean 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 that employs 10 or more employees, including the owner or owners and management and supervisorial employees. It does not include the City of Los Angeles or any other local, state or federal governmental units.
Even after an employer makes a conditional offer of employment, however, the employer may not take adverse action against an employee with a criminal record unless it conducts a written assessment that analyzes the applicant's specific criminal history and the risks inherent in the duties of the position sought.
In performing this assessment, the Initiative requires employers to consider, at a minimum, the factors set forth by the U.S. Equal Employment Opportunity Commission, which include the:
- Nature and gravity of the applicant's offense
- Facts and circumstances surrounding the offense
- Number of offenses for which the individual has been convicted
- Applicant's age at the time of conviction or release
- Applicant's employment history before and after the offense or conduct
- Rehabilitation efforts by the applicant
- Time elapsed since the offense or completion of the sentence.
Employers also are required to consider other factors that may be required by rules and guidance issued by the Los Angeles Department of Public Works, Bureau of Contract Administration.
Prior to taking any adverse action, such as withdrawing an offer of employment, the employer must provide the applicant with written notice of the proposed action along with a copy of the written assessment and any other written information that supports the proposed action. The employer also must permit the applicant to complete the "Fair Chance Process." This means the applicant must be given an opportunity to submit documentation and other information relevant to his/ her criminal history and any other information the employer should consider in its written assessment. In accordance with the Fair Chance Process, the employer must postpone any adverse action and may not fill the position for at least five business days.
If the applicant provides additional information or documentation regarding his/her criminal history, the employer must review such information and prepare a written reassessment. Thereafter, an employer that moves forward with an adverse action based on the applicant's criminal background must advise the applicant and provide him/her with a copy of the written reassessment.
There are some exceptions. The Initiative specifically does not apply when:
- An employer is required by law to obtain information regarding an applicant's conviction history
- The applicant would be required to possess or use a firearm in the course of employment
- An applicant who has been convicted of a crime is prohibited by law from holding the position sought, regardless of whether that conviction was expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation
- The employer is prohibited by law from hiring an applicant who was convicted of a crime.
Starting July 1, 2017, the Initiative will impose fines of up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for each subsequent violation. Prior to July 1, 2017, the Department of Public Works, Bureau of Contract Administration will issue written warnings to employers that violate the law. Employers also should be sure to follow the Initiative's posting and record-retention requirements. Violations of these requirements will result in administrative fines of up to $500 per violation.
At a minimum, covered employers should conduct a review of their employment applications, including online and hardcopy versions, to ensure they comply with this Initiative. Employers also should consider training all employees involved in the hiring process so they are aware of the complex nature of the Fair Chance Process.
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