Los Angeles Adopts “Ban the Box” Ordinance Prohibiting Pre-Offer Inquiries about Applicants’ Criminal Histories

The “Los Angeles Fair Chance Initiative for Hiring (Ban the Box)” Ordinance, which went into effect on January 22, 2017, bars private employers in the City of Los Angeles who have at least 10 employees from inquiring into an applicant’s criminal history until after a conditional offer of employment is made. The L.A. Ban the Box Ordinance is similar to laws adopted across the country.[1] (See Connecticut Governor Signs “Ban-the-Box” Law Prohibiting Questions About Criminal History on Initial Employment Applications; Mayor de Blasio Signs “Ban the Box” Law Prohibiting Pre-Offer Inquiries By New York City Employers Regarding Applicants’ Criminal Histories; New Jersey and Washington, D.C. Enact “Ban the Box” Laws Prohibiting Application Questions About Criminal History).

The L.A. Ban the Box Ordinance applies broadly to any individual who submits an application or other documentation for work performed in the City of Los Angeles, including temporary or seasonal work, part-time work, contracted work, contingent work, temporary work, work through an employment agency, or any form of vocational or educational training, with or without pay. The L.A. Ban the Box Ordinance also:

• prohibits employers from including questions about criminal history on job applications;
• prohibits employers from seeking information about an applicant’s criminal history by any means, including by asking questions in an interview, searching the Internet or obtaining a background check, until after a conditional offer of employment has been made; and
• requires that all job advertisements state that the employer considers qualified applicants with criminal histories.

“Fair Chance” Process

Once an employer obtains information about an applicant’s criminal history, the employer cannot take any adverse action against the candidate (i.e., by withdrawing a conditional offer) until the employer conducts a “Fair Chance” process, which includes:

• Performing a written, individualized assessment describing the connection between specific aspects of the applicant’s criminal history and the risks inherent in the duties of the position sought. The employer must, at minimum, consider the factors identified by the Equal Employment Opportunity Commission (“EEOC”) (See April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964) and other factors required by any rules or guidelines that may be issued by the DAA.
• Giving the applicant a copy of the written assessment and providing the applicant with at least five business days to submit additional information to the employer, such as evidence of rehabilitation or other mitigating factors.

• Considering any information submitted by the applicant and performing a written reassessment, a copy of which must also be given to the applicant.

Any employer which uses an outside agency to conduct criminal background checks must also follow the pre-adverse action and adverse action notice requirements of both federal and state Fair Credit Reporting Act laws.

Notice and Record Retention

Employers must also post a notice about the L.A. Ban the Box Ordinance in a conspicuous place at every workplace, job site, or location in the City of Los Angeles that is under the employer’s control and is visited by job applicants. A copy of the notice must be given to any labor union that represents the employer’s employees.

Employers must retain all records relating to a candidate’s application and any written assessment or reassessment for three years.

Retaliation

It is unlawful for an employer to discharge, reduce the compensation of, or take any adverse employment action against any employee who: complains to the City about the employer’s compliance with the Ordinance; opposes any practice made unlawful by the Ordinance; participates in proceedings related to the Ordinance; or seeks to enforce his or her rights under the Ordinance. 

Enforcement and Penalties

There is a six-month grace period, until July 1, 2017, before penalties and fines will be imposed. During the grace period, the DAA will only issue written warnings. After July 1, 2017, an employer may be fined up to $500, $1,000, and $2,000, respectively, for its first, second, and third violations of the Ordinance. Fines for violations of the law’s notice and recordkeeping requirements are capped at $500 per violation.

An individual may bring a civil action against an employer for violation of the Ordinance, provided that the individual has first reported the alleged violation to the DAA within one year of its occurrence. The DAA will establish rules governing the administrative process for investigation and enforcement of alleged violations. 

Exemptions

The requirements of this Ordinance will not apply:

• Where an employer is required by law to obtain information regarding an applicant’s conviction history;
• Where an applicant would be required to possess or use a firearm in the course of his or her employment;
• Where a person who has been convicted of a crime is prohibited by law from holding the position he or she has applied for, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation;
• Where an employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Next Steps

Private employers in Los Angeles should review their employment applications and advertisements (including any electronic versions), and remove any questions about criminal history. Employers should also train all managers who are involved in the hiring process about the requirements of the new law.

Please do not hesitate to contact our attorneys if you have any questions about the L.A. Ban the Box Ordinance.

[1] On a related issue, the state of California also recently adopted legislation, effective January 1, 2017, prohibiting employers from inquiring into an applicant’s juvenile convictions or using such convictions as a factor in determining any condition of employment.