Effective September 3, 2024, a new ordinance in Los Angeles County offers additional protections for individuals with criminal records seeking employment. The Fair Chance Ordinance builds upon California’s Fair Chance Act (AB 1008), codified in Government Code section 12952, which prohibits employers from asking about criminal records before extending a job offer. The new ordinance applies to businesses operating in unincorporated areas of LA County that employ five or more employees regardless of location. The ordinance applies to employees, or applicants to a position that will involve, performing at least two hours of work on average each week within the unincorporated areas of Los Angeles County. Below are five key takeaways for employers:
1. Prohibition on Criminal Background Inquiries Pre-Offer
Employers cannot inquire about criminal history before extending a conditional job offer. Any mention of criminal background checks in job advertisements, interviews, or application forms is prohibited. For example, the Ordinance requires employers to include language in all job advertisements “stating that qualified Applicants with arrest or Conviction records will be considered for Employment in accordance with the Los Angeles County Fair Chance Ordinance for Employers and the California Fair Chance Act.” Employers are prohibited from using language that excludes or discourages applicants with criminal histories from applying and using phrases like “No Felons” or “No Convictions” (though they can mention that a background check is required). If laws restrict hiring based on certain criminal histories, those specific restrictions must be clearly stated. Additionally, if a criminal history review is part of the hiring process after a conditional offer, job ads must list all “material job duties of the specific job position which the employer reasonably believes that Criminal History may have a direct, adverse and negative relationship….” If employers do plan to perform background checks after a conditional offer, they must notify applicants in writing, including a justification for the review.
2. Conditional Offers Required Prior To Background Check
Employers must provide written notice to the applicant or employee stating that the offer is contingent on a criminal history review before conducting a background check. The employer must also provide a written justification for the review, which cannot rely solely on general safety concerns. Justifications may include risks to the business or safety concerns for staff and the public. Additionally, if other background information (e.g., education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, or medical examinations) is being reviewed, it must be listed. Employers cannot request criminal history details from the applicant before receiving the official background check report, and a copy of the report must be provided to the applicant before discussing any findings.
3. Individualized Assessments Required
Before withdrawing a job offer or taking any adverse action based on an applicant’s criminal history, employers must conduct an “individualized assessment.” This involves reviewing whether the applicant’s criminal record directly impacts their ability to perform the job and considering mitigating factors, such as rehabilitation efforts, time passed since the offense, and the nature of the job.
4. Notice and Opportunity to Respond
If an employer intends to deny employment based on criminal history, they must first send a “Preliminary Notice of Adverse Action.” The applicant then has five business days to respond, either challenging the accuracy of the background check or providing evidence of rehabilitation. If additional time is needed, applicants may request an extension of up to 10 business days.
5. Record Retention and Posting Requirements
Employers are required to retain records relating to the hiring process, including job postings, applications, assessments, and notices for a minimum of four years.
Additionally, employers must post a required notice about the ordinance at workplaces and on their websites, informing employees and applicants of their rights. The notice can be downloaded here: https://dcba.lacounty.gov/wp-content/uploads/2024/08/FCOE-Official-Notice-Eng-Final-8.30.2024.pdf