Los Angeles Enacts 'Ban-the-Box' Legislation

Los Angeles is the latest in a growing list of jurisdictions to adopt an ordinance restricting employers from asking a job applicant about his or her criminal history during the application process.

Under the ordinance, private employers with at least 10 employees will be barred from inquiring about a job applicant's criminal history until a conditional offer of employment has been made.

The "Los Angeles Fair Chance Initiative for Hiring (Ban the Box)," signed by Mayor Eric Garcetti on Dec. 9, goes into effect on Jan. 22, 2017.

Los Angeles has taken a different approach than San Francisco, the other California city to have adopted a "ban-the-box" ordinance affecting private employers. For example, the San Francisco ordinance, enacted in 2014, restricts questions about applicants' criminal records on applications for employment and generally prohibits any type of criminal history inquiry until after the initial job interview.

The Los Angeles ordinance prohibits employers from inquiring about criminal histories until a conditional job offer has been made.

Applicant

An applicant for employment is broadly construed to include any individual who submits an application or other documentation for employment for work performed in the city, whether for full- or part-time work, contracted work, contingent work, work on commission, temporary or seasonal work, or work through an employment agency. It also includes any form of vocational or educational training, with or without pay.

Employer

An employer is defined as 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.

The ordinance does not apply to the city of Los Angeles or another local, state or federal government unit.

Prohibitions

Under the ordinance, employers are prohibited specifically from inquiring into or seeking a job applicant's criminal history before a conditional offer has been made. This broadly precludes employers from:

• Asking any question on a job application about an applicant's criminal history.
  
• Asking about or requiring disclosure of the applicant's criminal history during a job interview.
  
• 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 is defined as information regarding any felony or misdemeanor conviction from any jurisdiction for which the person was placed on probation, fined, imprisoned, or paroled.

Exceptions

The four common-sense exceptions to the prohibitions are 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 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.
  
• An employer is prohibited by law from hiring an applicant who has been convicted of a crime.
  

Fair Chance Process

If, after a conditional offer of employment has been made, an employer enquires into an applicant's criminal history and determines the information warrants an adverse action, it must follow a "Fair Chance Process."

Prior to taking any adverse action against an applicant, the employer must:

• 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. In performing the assessment, an employer must "at a minimum" consider the factors identified by the Equal Employment Opportunity Commission (e.g., conduct an individualized assessment) and follow any rules and regulations that may be issued by the designated administrative agency (DAA) responsible for enforcement.
  
• Provide the applicant with written notification of the proposed action, a copy of the written assessment, and any other information or documentation supporting the employer's proposed adverse action.
  
• Wait at least five business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the employment position.
  
• 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 "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.
  

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.

Recordkeeping, Notice

Employers must retain documents related to applicants' employment applications and any written assessment and reassessment performed for three years.

The ordinance's notice and posting requirements provide that employers must state in all job advertisements and solicitations for employment that they will consider for employment qualified applicants with criminal histories "in a manner consistent with the requirements of this [ordinance]."

To notify applicants of the ordinance, an employer must post a notice about the law in a conspicuous place at every workplace, job site or other city location under the employer's control and visited by applicants. In addition, a copy of the notice must be sent to the appropriate labor unions.

Retaliation

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, for opposing any practice made unlawful by the ordinance, for participating in proceedings related to this ordinance, or for seeking to enforce or assert his or her rights under the ordinance.

Civil and Administrative Enforcement

The law allows an individual to bring a civil action for violation of the ordinance. However, as a prerequisite to pursuing a civil action against an employer, the individual first must report an administrative complaint to the DAA (Department of Public Works, Bureau of Contract Administration) within one year of the alleged violation.

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 and 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.

A civil lawsuit may be brought against the employer, but only after the alleged violation has been reported to the DAA and the administrative enforcement process has been completed or a hearing officer's decision has been rendered, whichever is later.

The DAA still needs to establish rules governing the administrative process for investigation and enforcement of alleged violations.

All covered Los Angeles employers should communicate and train their managers who are involved in the hiring process about the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) ordinance and take steps to ensure compliance with its restrictions.

Jamerson C. Allen is an attorney with Jackson Lewis in San Francisco. Susan M. Corcoran is an attorney with Jackson Lewis in White Plains, N.Y. Richard I. Greenberg is an attorney with Jackson Lewis in New York City. Alexandra Gilinsky is an attorney with Jackson Lewis in Los Angeles. © Jackson Lewis. All rights reserved. Reposted with permission. 

California HR Newsletter: 

The California HR e-newsletter is a free monthly newsletter that provides the top California HR and employment law news, including updates on state and federal court decisions and analysis of state legislation and regulations. Subscribe