If you’re a city contractor or private employer in the City of Los Angeles with 10 or more employees, starting January 22, 2017 you will be subject to new restrictions on how you deal with job applicants’ criminal histories. The only employers exempt from these requirements will be those that are required by law to obtain conviction information, are prohibited by law from hiring applicants convicted of a crime, are seeking to fill positions that applicants with convictions are prohibited from holding, or that are filling positions where employees are required to possess or use firearms. All other employers should prepare to take the following steps:
1. Eliminate any questions in your employment applications about criminal histories. Make sure that your recruiters and interviewers also know not to make such inquiries.
2. Include language in all solicitations or advertisements seeking applicants that you will consider qualified applicants with criminal histories in a manner consistent with the Los Angeles Fair Chance Initiative for Hiring.
3. Post a notice informing applicants for employment about the LA Fair Chance Initiative at each workplace, job site, or other location in the City of Los Angeles under your control that job applicants visit. If you have unionized workers, you must also send a copy to the union representing those workers. The City of LA will presumably make such a notice available.
4. Put a “Fair Chance Process” in place. Specifically, after you’ve made a conditional offer of employment, you may ask the applicant about criminal convictions. But you may not withdraw the application based on the response without:
(a) Completing a written assessment that explains the link between the applicant’s criminal history and the risks inherent in the position applied for. This assessment must include discussion of the nature of the offense or conduct that led to the conviction; the time that has passed since the conviction or release from incarceration; and the nature of the position sought. The ordinance allows the Department of Public Works, Bureau of Contract Administration to add to this list of factors in the future.
(b) If you are considering withdrawing a conditional offer of employment, you must first provide the applicant written notice, a copy of the written assessment you created, and any other documents or information supporting the decision. You must then give the applicant five business days to provide any information regarding rehabilitation or other mitigating factors. You must hold the position open during that time.
(c) If the applicant provides such information, you must consider it and complete a written reassessment.
(d) If you still decide to withdraw the offer, you must then notify the applicant in writing and provide a copy of the reassessment.
5. Maintain all relevant records for three years after receipt of an application for employment.
While the ordinance takes effect January 22, 2017, any violation before July 1, 2017 will result only in a written warning. After that date, employers who make prohibited inquiries are subject to fines of $500 to $2,000 per violation. The fine for failing to include language in an employment advertisement or job posting or for failing to maintain the required records will be $500 per violation. Applicants can also bring civil actions to enforce the ordinance.
LA is not the first city to adopt “Ban the Box” requirements. San Francisco did so in 2014. But LA’s ordinance seems to be the most demanding. Employers are well-advised to consult qualified employment counsel to ensure that they have proper procedures in place for dealing with applicants with criminal backgrounds.