The Los Angeles County Board of Supervisors recently passed the Fair Chance Ordinance for Employers (“Ordinance”), L.A. Cnty. Code § 8.300 et seq., in an effort to ensure “individuals with criminal records have fair and equitable access to opportunities for gainful employment.” By September 3, 2024, employers in the unincorporated areas of Los Angeles County with five or more employees must comply with the Ordinance.
At the end of 2023, the State codified regulations implementing California’s Fair Chance Act (Cal. Code. Regs. tit. 2, §§ 11071, 11071.1), which similarly governs an employer’s consideration of criminal history information in employment decisions. The recently passed Ordinance imposes obligations for employers that are in addition to the State regulations relating to job solicitations, notice requirements, and evaluation of criminal history information in employment and hiring decisions.
Job Posting Requirements
Employers with at least five employees in the unincorporated areas of L.A. County must ensure that job postings:
- Include language stating that qualified applicants with arrest or conviction records will be considered in accordance with the Ordinance and the California Fair Chance Act.
- Do not contain language prohibiting individuals with a criminal history from applying. Employers may include language such as “Background Check Required,” but cannot state that candidates must pass a background check.
- Specify all laws and regulations that restrict the hiring of individuals with a criminal history for those employers that are legally permitted to do so.
- List all of the position’s material job duties that the employer reasonably believes a criminal history may adversely affect and potentially result in the withdrawal of the job offer if the employer is intending to review criminal history information.
Notice Requirements
Employers intending to review criminal history information in connection with a conditional offer of employment must provide a written notice to the applicant that includes the following:
- A statement that the conditional offer is contingent upon review of the individual’s criminal history.
- A statement that the employer has good cause to conduct a criminal history review with supporting justification provided in writing. Merely stating “safety concerns” is insufficient. Rather, good cause is established if the employer “faces a significant risk to its business operations or business reputation” unless a criminal history review is necessary because of “articulable concerns regarding the safety or risk of harm or harassment to the employer’s staff, employees, contractors, vendors, associates, clients, customers, or the general public.”
- If an employer considers other information in addition to criminal history information, the employer must list all the other types of information the employer considers, including information such as social media history or driving record.
Employers must post a notice of the Ordinance’s provisions in the workplace and on their webpages visited by employees or applicants and send a copy of the notice to labor unions with whom they regularly deal. The notice must be available in a language spoken by at least 10 percent of the workforce. The Ordinance requires the L.A. County Department of Consumer and Business Affairs to publish a notice by September 3, 2024, and update it annually with any new updates by December 1.
Other Requirements
Further, the Ordinance prevents employers from requesting any information regarding criminal history prior to the employer receiving the criminal background check report following a conditional offer of employment.
Employers intending to rescind a conditional offer or taking any other adverse action based on criminal history information must conduct a written individualized assessment evaluating whether the criminal history has a “direct, adverse and negative bearing” on the applicant’s or employee’s ability to perform duties or responsibilities necessarily related to the job position.
Similar to employer obligations under the Fair Chance Regulations, employers must provide preliminary and final adverse action notices. The Ordinance, however, also requires employers to provide a copy of the written individualized assessment with the pre-adverse action notice. Following the pre-adverse action notice, employers must wait five business days before taking an adverse action or 10 days if the individual responds to the notice disputing the background check report and needs time to obtain written evidence or to present evidence of rehabilitation or mitigating circumstances orally at a meeting with the employer.
If an applicant or employee provides additional information, the employer must consider the new information and conduct a second individualized assessment. If the employer still intends to take adverse action, the employer must provide a final notice along with a copy of the second individualized assessment.
Recordkeeping
Employers also must keep records, including job postings, employment applications, individualized assessments, notices, conditional offers, rescission and withdrawal letters, and any and any correspondence from the employer, applicant or third party for at least four years following the receipt of an employment application.
Employers should contact counsel for further guidance as the Ordinance is comprehensive and imposes many obligations.