Los Angeles County Passes Fair Chance Ordinance for Unincorporated Areas

At the end of February, the Los Angeles County Board of Supervisors passed an ordinance adding several compliance requirements to the California Fair Chance Act requirements for employers considering the criminal history of applicants and employees in making employment decisions.

The Fair Chance Ordinance (FCO) applies to employers with five or more employees in unincorporated areas of Los Angeles County.

The ordinance takes effect March 28 and is operative Sept. 3.

The following is a summary of some of the ordinance’s requirements.

Job Postings

Under the FCO, employers shall not prevent or discourage applicants or employees with criminal history from applying or responding to job solicitations, postings, announcements and advertisements (together referred to as “job postings”). Employers shall:

• Include in all job postings language stating that qualified applicants with arrest or conviction records will be considered for employment.
• Specify in all job postings any local, state or federal laws that impose restrictions or prohibit the hiring of individuals with specified criminal history.
• Specify in the job postings the employer’s intention, if any, to conduct a review of an employee’s criminal history in connection with a conditional offer and include a list of all material job duties of the specific job position that the employer reasonably believes that the criminal history may have a direct, adverse and negative relationship potentially resulting in the withdrawal of the conditional offer of employment.

Employers shall not include statements in job postings that no person with a criminal history will be considered for hire or should not apply.

Background Checks

Covered employers are prohibited from inquiring about criminal history prior to extending an applicant or employee a conditional offer of employment unless legally required to do so. This includes not asking or encouraging an applicant or employee to disclose information about their criminal history or rejecting applications because criminal history was not provided.

If conducting a background check after a conditional offer, the employer must provide notice in writing that includes the following:

• A statement that the conditional offer of employment is contingent upon the review of the individual’s criminal history.
• A statement that the employer has good cause to conduct a review of criminal history for the specific job position with supporting justification. A general statement without supporting justification is not deemed sufficient.
• A complete list of all types of information, background or history that will be reviewed in addition to the applicants’ or employees’ criminal history, including but not limited to education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing or medical examinations.

In obtaining a criminal background check, an employer may not ask the applicant or employee to provide information orally or in writing regarding the applicant or employee’s criminal history, unresolved arrests, or prior convictions, including asking the applicant or employee to fill out a criminal history questionnaire, prior to the employer’s receipt of the criminal background check report. Such report must be provided to the applicant or employee before an employer discusses any criminal history information, or requests further criminal history information from, the applicant or employee.

If an employer intends to deny an applicant or employee a position of employment, rescind a condition offer, or take any other adverse action against an employee solely or in part because of the applicant’s criminal history, the employer must first conduct an initial individualized assessment that is documented in writing, of whether the applicant’s criminal history has a direct adverse and negative bearing on the applicant’s ability to perform the duties necessary for the position.

Preliminary Notice and Notice of Adverse Action

If after the initial individualized assessment, the employer intends to withdraw or rescind a conditional offer of employment and/or take any other adverse employment action, the employer shall provide the applicant or employee with a preliminary notice of the adverse action, which must be sent by both regular mail and email, if an email address is available, and contain the following:

• Notice of intent to withdraw or rescind condition offer of employment and/or take any other adverse employment action due to criminal history.
• An explanation of the applicant’s right to respond to the notice before the decision becomes final, including the waiting periods and timelessness to respond as specified in the FCO.
• A copy of the initial individualized assessment.
• Notice of the disqualifying convictions.
• A copy of the criminal background check report.

The employer must give the applicant or employee five business days to respond to the preliminary notice of adverse action before making a final decision. The applicant or employee must be given at least 10 additional business days either: a) to respond to the preliminary notice if the applicant notifies the employer in writing that they dispute the accuracy of the background check and is taking steps to obtain evidence or needs additional time to obtain written evidence if rehabilitation or mitigating circumstances, or b) to present evidence of rehabilitation or mitigating circumstances orally at a meeting between the applicant or employee and the employer.

The employer must consider all of the information and documents, whether written or oral, timely submitted before making a final decision or taking an adverse action and the employer must complete a second individualized assessment. If after a second individualized assessment, the employer makes the final decision to withdraw the conditional offer or take adverse employment action, the employer shall notify the applicant or employee by both regular mail and electronic mail of the following:

• Notice that the employer has made a final decision to withdraw the conditional offer.
• A copy of the second individualized assessment.
• Notice of the disqualifying conviction.
• Information regarding existing procedures the employer has for the applicant to challenge the decision or request reconsideration.
• Notice of the applicant’s or employee’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs.

The employer must provide the final notice of adverse action within 30 calendar days after the applicant or employee timely responds to the preliminary notice. Otherwise, it will be presumed the delay was untimely and in violation of the section. In order to rebut this presumption, the employer must provide a written explanation justifying the delay.

Record Keeping

Employers must maintain and preserve any and all records relating to this ordinance for a minimum of four years following receipt of an application.

Sayaka Karitani is an attorney with Jackson Lewis in Los Angeles. © 2024 Jackson Lewis. All rights reserved. Reposted with permission.