United States: Are You Ready For Important California And City Of Los Angeles Regulations Effective July 1, 2017?

Last Updated: July 20 2017
Article by Susan E. Groff, Susan M. Corcoran and Jamerson C. Allen

Both California and the City of Los Angeles have enacted regulations effective July 1, 2017 governing employer use of applicant and employee criminal history in making employment decisions. Below we summarize these upcoming changes as well as the City of San Francisco's ordinance already in effect.

New California Regulations

The California Fair Employment and Housing Council ("FEHC") adopted new regulations limiting the ability of employers to consider criminal history when making employment decisions. These new regulations prohibit employers from using criminal records or information regarding criminal history in employment decisions if doing so would have an adverse impact on individuals in a legally protected class designated by the Fair Employment and Housing Act ("FEHA") unless the employer could establish the practice was job-related and consistent with business necessity. Even then, an employer could still face liability if the adversely impacted applicant or employee is able to demonstrate an effective and less discriminatory way of achieving the business necessity.

To establish job-relatedness and business necessity, an employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:

  1. The nature and gravity of the offense or conduct;
  2. The time that has passed since the offense or conduct and/or completion of the sentence; and
  3. The nature of the job held or sought.

Demonstrating that a policy or practice of considering conviction history in employment

decisions is appropriately tailored to the job for which it is used as an evaluation factor requires that an employer either:

  1. Demonstrate that any "bright-line" conviction disqualification or consideration (that is, one that does not consider individualized circumstances) can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify, or otherwise adversely impact the status of the employee or applicant, have a direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the employment position. Bright-line conviction disqualification or consideration policies or practices that include conviction-related information that is seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense (except if justified by subsection (f) below); or
  2. Conduct an individualized assessment of the circumstances and qualifications of the applicants or employees excluded by the conviction screen. An individualized assessment must involve notice to the adversely impacted employees or applicants (before any adverse action is taken) that they have been screened out because of a criminal conviction; a reasonable opportunity for the individuals to demonstrate that the exclusion should not be applied due to their particular circumstances; and consideration by the employer as to whether the additional information provided by the individuals or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.

Regardless of whether an employer utilizes a bright line policy or conducts individualized assessments, before an employer may take an adverse action such as declining to hire, discharging, laying off, or declining to promote an adversely impacted individual based on conviction history, obtained by a source other than the applicant or employee (e.g. through a credit report or internally generated research), the employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant or employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.

For more information about these new regulations, visit our previous blog here.

'Ban the Box' Legislation Makes its Way to City of Los Angeles

While the City of Los Angeles Fair Chance Ordinance ("FCIHO") became effective January 22, 2017, employers had until July 1, 2017, before penalties may be imposed for non-compliance with provisions of the FCIHO. Below we describe the penalties facing employers who fail to comply with the recent ordinance and review the ordinance's principal requirements.

Except for violations of the FCIHO's notice, posting, and record retention requirements, the DAA (Department of Public Works, Bureau of Contract Administration) may fine employers who violate the ordinance up to $500 for the first violation, up to $1,000 for the second violation, and up to $2,000 for violations of the FCIHO. Violations of the FCIHO's notice, posting, and record retention requirements may result in fines of up to $500 per violation. The amount of the fine imposed by the DAA may be based on the willfulness of the employer as determined by the DAA.

Penalties are due to the City of Los Angeles within 30 days of notice to the employer. Failure of an employer to pay the fine within 30 days shall result in assessment of a late fee, which shall be 10% of the total amount of the fine assessed for each month the amount is unpaid, compounded to include already accrued late fines which remain unpaid. Further, the fine paid by the employer may be awarded by the City of Los Angeles to the applicant or employee, up to a maximum of $500 per violation.

Individuals also may bring a civil action for violation of the FCIHO once they have submitted an administrative complaint to the DAA (Department of Public Works, Bureau of Contract Administration). Employees or applicants may seek penalties (as set forth above) plus other legal and/or equitable relief as appropriate to remedy the violation.

In sum, absent limited exceptions, the FCIHO generally prohibits private employers with at least 10 employees from inquiring into an applicant's criminal history until after a conditional offer of employment has been made. This prohibition precludes employers from:

  • Asking any question on a job application about an applicant's criminal history;
  • Asking about or requiring disclosure of the applicant's criminal history during a job interview; or
  • Independently searching the internet for criminal conviction information or running a criminal background check before a conditional offer of employment has been made.

If an employer inquires into an applicant's criminal history after a conditional offer of employment and determines such information warrants an adverse action, the employer must follow the "Fair Chance Process," which requires the employer to do the following:

  1. Perform a "written assessment" that links the specific aspects of the applicant's criminal history with the risks inherent in the duties of the position sought.
  2. Provide the applicant with written notification of the proposed action, a copy of the written assessment, and any other information or documentation supporting the employer's proposed adverse action;
  3. Wait at least five business days after the applicant is informed of the proposed adverse action before taking such action or filling the employment position; and
  4. Consider information or documentation provided by applicant regarding error, rehabilitation or other mitigating information. If the employer still elects to take the adverse action after such reassessment, it must again notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

For more information about the Los Angeles Fair Chance Ordinance, please read our previous posts here and here.

San Francisco's 'Ban the Box' Ordinance

In August 2014, the City and County of San Francisco enacted its Fair Chance Ordinance, which restricts all employers with at least 20 employees from inquiring about an applicant's criminal history on an employment application or before completing an initial interview. This law applies to regular employees, as well as employees performing contract work, contingent work, or work through a temporary agency.

After the initial interview, the Ordinance continues to prohibit the employer from asking the applicant about the following:

  • Arrests that did not result in conviction, unless charges remain pending;
  • Completion of a diversion program;
  • Sealed or juvenile offenses;
  • Offenses that are more than seven years old from the date of sentencing; and
  • Offenses that are not misdemeanors or felonies, such as infractions.

Prior to requesting any information about criminal history, an employer must provide the applicant with written notice and must display a poster in the workplace developed by the City's Office of Labor Standards Enforcements ("OLSE").

The Ordinance also restricts an employer's ability to consider criminal history disclosed by an applicant. Employers may only consider disclosed criminal history if it "has a direct and specific negative bearing on that person's ability to perform the duties or responsibilities necessarily related to the employment position." However, in making this determination, employers must consider whether the position offers an opportunity for the same or similar offense to occur. Employers must also consider the amount of time that has elapsed since the convictions and other mitigating factors.

If an employer chooses to reject an applicant because of their criminal history, the employer is required to notify the applicant in writing before the decision is made. The applicant must then be given seven days to provide notice of an error, rehabilitation, or other mitigating information. If the applicant chooses to submit such information, the employer must take a reasonable amount of time to consider this new information and reconsider the proposed adverse action before taking final action.

The Ordinance also requires employers to include a notice that it will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance in any solicitation or advertisement for new employees likely to reach persons who are reasonably likely to seek employment in San Francisco.

Employers who violate this Ordinance may be exposed to significant liability. The City is authorized to pursue civil remedies, including injunctive relief, reinstatement of an aggrieved applicant or employee, back pay, benefits, and $50 per day for each day the Ordinance is violated, and attorneys' fees and costs.

For more information about Ban the Box Legislation in San Francisco, read our previous post here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.