Los Angeles County recently passed a comprehensive Fair Chance Ordinance (FCO) that exceeds the standards set by the statewide Fair Chance Act. This blog is intended to provide a high-level summary of the new law. Further detail may be found in our Ban the Box or 50 State Guide. The Department of Economic Opportunity has also published FAQs employers should review. Employers are encouraged to act now as the law becomes operative on September 3, 2024.
Criminal Background Check Impacts
Application
Under the FCO, applicant includes employees who are applying for a promotion with their current employer. The FCO applies to employers with five (5) or more employees regardless of location, including any entity/agent that evaluates criminal history on behalf of an employer, whenever the employee will work within the unincorporated areas of Los Angeles County at least two (2) hours on average each week.
Criminal History Inquiries
From a criminal history background check perspective, employers may not inquire into criminal history or conduct the background check until after extending a conditional offer (unless they are legally required to do so sooner). Additionally, employers cannot require applicants to complete a criminal history questionnaire until after they have received the criminal background check results and must first provide those results to the applicant.
Written Notice Required
If an employer intends to review an applicant’s criminal history, it must provide written notice identifying specific items including any other information that may be reviewed (such as education or employment verifications, drug testing, motor vehicle or driving history, etc.).
Prohibition on Certain Criminal History Information Consideration
There are several items employers may not consider such as arrest only information and juvenile records. These largely mirror existing state law, but the FCO also prohibits employers from considering criminal convictions that arose out of conduct that has since been decriminalized.
Adverse Action Impacts
Initial Individualized Assessment
The FCO requires employers conduct an initial individualized assessment in writing. If an applicant has a license, certificate or other credential, it will be presumed the applicant’s criminal history is not directly, adversely or negatively related to the specific duties of the position so the employer must provide an explanation to rebut this presumption in their initial individualized assessment.
Delays in Background Check Completion
Employers cannot base a decision to rescind or withdraw a conditional offer solely on the fact the criminal background check is delayed. In order to take such action, employers must demonstrate they suffered an undue burden if they continued to hold the job position open pending the background check’s completion and at least ten business days have passed since the report was requested. Employers must inform the applicant if a decision will be made to withdraw the conditional offer based on this reason.
Preliminary Adverse Action Notice
If an employer intends to withdraw the conditional offer, it must provide a preliminary notice of adverse action that must be sent via mail and email (if an email is provided). The notice must include the intention to withdraw/rescind the offer, provide an explanation of the waiting periods and timelines which must be displayed in bold font, underlined or in all capital letters, and the applicant’s response may include evidence challenging the accuracy of the report and/or evidence of rehabilitation or mitigating circumstances. The employer must also include a copy of the report, the individualized assessment, and notice of the disqualifying conviction(s).
The employer must wait at least five (5) business days before making a final decision. If the applicant disputes information on the report, or asks for additional time to provide evidence of rehabilitation or mitigating circumstances, the employer must provide at least ten (10) additional business days. The position must remain open during this period. Similar to California’s statewide law, the notice period begins following a date of receipt period with one key difference. The waiting period cannot begin until the notice is received based on the mailing time period.
Second Individualized Assessment
Prior to making a final decision, the employer must consider any information provided by the applicant and perform a second individualized assessment that is documented in writing.
Final Adverse Action Notice
If the decision is made to withdraw the employment offer or take any other adverse action, the employer must notify the applicant via mail and email. The notification must include the second individualized assessment, conviction(s) forming the basis for the decision, information regarding any procedure to challenge the decision or request reconsideration, and notice of the individual’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs.
Other Impacts
The FCO also impacts job advertisements, and includes posting requirements, record retention obligations and prohibits retaliation. The FCO provides protections for employers from negligent hiring and retention claims if the employer was prohibited from considering the particular criminal history information that may be at issue.