By Anne Cherry Barnett and Emily Erdman
On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the “Fair Chance Initiative” prohibiting employers from considering a job applicant’s criminal history, except in limited circumstances. Private employers in Los Angeles may no longer ask job applicants about their criminal histories prior to making conditional job offers. Los Angeles joins over 150 cities and counties in 24 states nationwide, including San Francisco, that have adopted such “Ban the Box” ordinances. View the City of Los Angeles ordinance here.
The Los Angeles ordinance applies to employers with 10 or more employees as well as city contractors. To qualify for the new protections, an employee must work at least two hours per week, on average, within the geographic boundaries of Los Angeles.
The ordinance bars employers from inquiring about an applicant’s criminal history via application forms, interviews, and/or criminal history reports. Rather, an employer must first make a conditional job offer to the candidate before assessing a candidate’s criminal history.
Rescinding offers of employment
Employers that choose to rescind an offer of employment based on an applicant’s criminal record must now follow a number of steps mandated by the ordinance before taking an adverse action. Similar to other “ban the box” initiatives, an employer must:
Assess factors identified by the United States Equal Employment Opportunity Commission as relevant to the consideration of conviction records in employment;
Create a “written assessment that effectively links the specific aspects of the Applicant’s Criminal History with risks inherent in the duties of the Employment position sought;” and
Provide the applicant with its evaluation.
The ordinance does exempt employers from its requirements where, for example, state or federal law either bars an employer from hiring an applicant convicted of a specific crime or requires that an employer obtain conviction information prior to hire.
Employers that violate the City’s ordinance may be liable for administrative penalties up to $500 per violation, and could also be subject to private lawsuits brought by individual applicants and/or employees. Employers in the Los Angeles area should review their job application policies and practices with the assistance of employment counsel prior to February 1, 2017 to ensure compliance. Stay tuned for future analysis of how the new ordinance interacts with state and federal background check requirements.