SPECIAL BULLETIN DECEMBER 2016
CITY OF LOS ANGELES PASSES BAN-THE-BOX ORDINANCE RESTRICTS USE OF CRIMINAL HISTORY IN BACKGROUND CHECKS
On December 9, 2016, Mayor Garcetti signed the “Los Angeles Fair Chance Initiative for Hiring” (commonly referred to as “Ban the Box”). The Ordinance will become effective on January 22, 2017 (31 days after the ordinance was published). However, there is a six-month grace period before penalties and fines kick in on July 1st.
With this new Ordinance in place, employers will be restricted from inquiring into an applicant’s criminal history during the application process. A background check which includes an inquiry into criminal history can be conducted after a “conditional offer of employment” has been made.
Who is Covered?
Applicants
Any individual who submits an application or other documentation for employment for work performed in the City of Los Angeles, whether for full- or part-time work, contracted work, contingent work, temporary or seasonal work, or work through an employment agency or work that is paid for by commissions. It also includes any form of vocational or educational training, with or without pay.
Employers
Any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization that is located or doing business in the City and employs at least 10 employees (including owners and managerial/supervisorial employees).
Employees
Any individual who performs at least two hours of work on average each week within the boundaries of the city of Los Angeles; and qualifies for minimum wage under the California minimum wage law.
Restrictions
Under the Ordinance, covered employers are prohibited from
- asking about criminal history on job applications.
- 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.
Criminal history has been defined as information regarding any felony or misdemeanor conviction from any jurisdiction for which the person was placed on probation, fined, imprisoned, or paroled.
Conditional offer of employment is defined as an offer of employment that is solely conditioned on an assessment of the applicant’s criminal history and the duties and responsibilities of the position in question.
Post Offer Procedure: Fair Chance Process
After a conditional offer has been made, employers are required to follow certain procedures and restrictions before using any conviction history information to make decisions about employment.
If the information obtained reveals a negative criminal history, the employer must follow a “Fair Chance Process” to put the applicant on notice of the potential adverse employment action (e.g. withdrawing or cancelling a conditional offer of employment or otherwise failing or refusing to employ an individual).
The Ordinance requires an employer to undertake the following steps prior to any adverse action:
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. The Ordinance requires employers to consider, at a minimum, the factors identified by the U.S. Equal Employment Opportunity Commission (EEOC). Until further regulations are published providing additional guidance, it is presumed that the EEOC factors referred to include:
(a) the nature and gravity of the offense,
(b) the time passed since the offense, and
(c) the nature of the job sought,
or any other factors as may be required by future rules or guidelines promulgated by the Los Angeles Department of Public Works, Bureau of Contract Administration (the Designated Administrative Agency (DAA) which has administrative oversight for the Ordinance).
2. Provide the applicant with a copy of the following:
- a written notification of the proposed adverse action (i.e., a pre-adverse action letter);
- a copy of the written assessment analyzing the three factors (noted above) and any other factors promulgated by the Department of Public Works; and
- any other factors or documentation supporting the proposed adverse action.
3. Wait at least five business days after sending the pre-adverse action letter in order to give the applicant an opportunity to provide information or documentation to allow the employer to engage in (a) a new assessment using the 3 factors noted above and (b) the EEOC individualized assessment. During this period, the employer should not take adverse action against the applicant or otherwise fill the position in question.
4. If the applicant provides the employer with any information or documentation pursuant to the Fair Chance Process, the employer must consider that information and perform a second “written reassessment” of the proposed adverse action. If the employer still elects to take the adverse action after such reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.
Adverse Action Letter Requirements
Once the Fair Chance Process has been completed, an employer may decide to move forward with the “adverse action”. If so, the employer must, (in addition to federal and state requirements):
notify the individual of the adverse action (i.e., provide an adverse action letter); and
if applicable, provide the applicant with a copy of the final written assessment.
Advertisement Requirements
All covered employers must include the following language in any advertisements or solicitations seeking applicants:
“The employer will consider for employment qualified Applicants with Criminal Histories in a manner consistent with [the Los Angeles Fair Chance Initiative for Hiring].”
Recordkeeping
Employers must retain all records and documents related to an individual’s application for employment, including any written assessments and re-assessments under the Fair Chance Process, for a period of three years after the receipt of the applicant’s application. The Los Angeles Department of Public Works can request these records, and employers are required to comply with these requests.
Posting Requirements
The Ordinance requires all covered employers to post a notice in a conspicuous place at every workplace, job site, or other location in the city of Los Angeles under the employer’s control that is visited by applicants.
Employers are also to send a copy of the notice to each labor union or worker representative that has a collective bargaining agreement covering the employer’s Los Angeles employees.
It is currently unclear what the specific language of the notice should contain and hopefully the city of Los Angeles will provide further guidance.
Retaliation Prohibited
As with most every other employment related law, the Ordinance makes it unlawful for an employer to take any “adverse employment action” against any employee for:
- Complaining to the City about the employer’s compliance or anticipated compliance with the Ordinance,
- opposing any practice made unlawful by the Ordinance,
- participating in proceedings related to this Ordinance,
- seeking to enforce or assert his or her rights under the Ordinance, or
- otherwise asserting any rights under the Ordinance.
Civil and Administrative Enforcement
Administrative Reporting Prerequisite
An individual may report violations of the Ordinance to the Los Angeles Department of Public Works within one year of the alleged violation. The Department may issue citations, order specific actions to cure the violation, or levy fines. Only citations and not fines will be issued for violations through July 1, 2017.
Civil Claims
As a prerequisite to pursuing a civil action against an employer, the individual first undertake the administrative reporting noted above. A lawsuit cannot be filed until the administrative enforcement process has been completed or a hearing officer’s decision has been rendered, whichever is later. Any civil action must be filed within one year of the later of completion of the administrative enforcement process or issuance of the decision.
The DAA still needs to establish rules governing the administrative process for investigation and enforcement of alleged violations.
Fines
Beginning July 1, 2017, the DAA may fine employers up to $500 for the first violation, up to $1,000 for the second, and up to $2,000 for the third and subsequent violations of the law. However, fines for violations of the record-retention, notice and posting requirements are capped at $500 for each violation.
Prior to July 1, 2017, the DAA will not issue any monetary penalties. Instead, it will issue written warnings to employers that violate the Ordinance.
Exceptions to the Ban the Box Ordinance Requirements
The pre-employment inquiry, pre-adverse action, adverse action, and advertisement requirements do not apply in the following circumstances:
- Where an employer is required by law to run a criminal background check on an applicant to obtain information on an applicant’s conviction;
- The job position sought requires the possession or use of a gun;
- A person who has been convicted of a crime is prohibited by law from holding the position sought; and
- When an employer is prohibited by law from hiring an applicant who has been convicted of a crime.
What Do I Do Now:
Employers using a consumer reporting agency to conduct their criminal background checks should proceed with the Fair Chance Process concurrently with the pre-adverse and adverse action requirements of both federal and state Fair Credit Reporting Act laws.
Covered employers must review and update job applications and other hiring and employment documentation to conform to the Ban the Box Requirement.
Employers should educate their managers who are involved in the hiring process about the Ordinance and take steps to ensure compliance with its restrictions.
Post the new poster once it has been published.