By: Andrea F. Oxman
In December, 2016, Los Angeles Mayor Eric Garcetti signed the Los Angeles Fair Chance Initiative for Hiring, also known as “Ban the Box.” Several other cities and states, including San Francisco and New York, have similar laws on the books, all of which preclude employers from asking any questions about a prospective employee’s criminal history in the early stages of hiring.
The City of Los Angeles Fair Chance Initiative for Hiring took effect January 22, 2017 and prohibits employers located in the City of Los Angeles or doing business in the City of Los Angeles from inquiring on a job application, during an interview, or otherwise about an applicant’s criminal history until a conditional offer of employment is made. Only after a conditional offer is made, and only if the employer provides the prospective employee with all legally mandated disclosures and obtains written consent, may the employer run a criminal background check. If the employer elects to run a criminal background check and discovers that the prospective employee has a criminal history or prior criminal conviction, the employer must then engage in a dialogue with the prospective employee, including the “Fair Chance Process” before rescinding the conditional offer of employment.
The Fair Chance Process
Step 1: If after making a conditional offer of employment, an employer discovers an applicant’s criminal history and wishes to rescind an employment offer, the employer must first complete a written assessment that “effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the position sought.”
Step 2: Before rescinding the offer, the employer must provide the applicant with a copy of the written assessment described above and an opportunity to “provide information or documentation to…[the employer] regarding the accuracy of his/her Criminal History or Criminal History Report or that should be considered…such as evidence of rehabilitation or other mitigating factors.” This is known as the “Fair Chance Process.” An applicant must be provided with five (5) business days to complete the Fair Chance Process.
Step 3: If the applicant provides the employer with Fair Chance Process information regarding his/her criminal history, the employer must consider the information provided and perform a written reassessment of the proposed withdrawal or cancellation
Step 4: If after doing so, the employer elects to proceed with withdrawing or cancelling the conditional offer of employment, the employer must provide the applicant with a copy of the written reassessment.
This is a significant departure from existing California law and employment practices in the State, with many employers previously requiring applicants to disclose any felony convictions occurring over the past seven (7) years on their employment application at the start of the hiring process. While Los Angeles’s new ordinance does exempt a handful of employers/occupations from compliance (e.g., positions requiring the applicant to carry a firearm), the exceptions are few and the ordinance has a very broad reach given that it extends not only to those businesses physically located in the City of Los Angeles, but also those that do business there.
For now, employers are only being issued written warnings for non-compliance with the ordinance, but come July 1, 2017, applicants will be able to bring a private cause of action for penalties if an employer does not comply with the ordinance’s requirements and the Department of Public Works, Bureau of Contract Administration will also begin enforcing the ordinance and collecting penalties. The ordinance provides for penalties in the amount of $500 for the first violation of select provision of the ordinance, $1,000 for the second violation, and up to $2,000 for the third violation.
If you do business in the City of Los Angeles or in the City of San Francisco and have questions about whether your hiring practices comply with these cities’ Fair Chance Ordinances, the Employment Group at Klinedinst PC is able to help.
Ms. Oxman has just published a new white paper on the subject. To download the white paper, please visit:
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