Providing Developments & Insight on Trending Topics in Employment Law

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Providing Developments &amp; Insight on Trending Topics in Employment Law

<img class="alignright wp-image-4767 size-medium" src="https://employmentlawspotlight.bakerhostetlerblogs.com/wp-content/uploads/sites/18/2016/12/Los-Angeles_iStock_000010258172-adj-300x171.jpg" width="300" height="171" />Los Angeles has become the latest city to ban private employers from asking job applicants about their criminal histories before offering a job. With its <a href="http://clkrep.lacity.org/onlinedocs/2014/14-0746_misc_11-28-2016.pdf">Fair Chance Initiative for Hiring</a>, the city joins San Francisco, New York, Chicago, and about two dozen other cities, counties and states in enacting Ban the Box measures to promote better employment opportunities for ex-offenders.

The ordinance applies to employers doing business in the city if they have at least 10 employees, including owners, managers and supervisors, who perform an average of at least two hours of work each week in the city and who qualify as employees entitled to California’s minimum wage. The law’s protections extend not only to applicants for traditional employment, but also to those seeking temporary, seasonal or part-time work; contracted work; contingent work; work on a commission basis; and work obtained through a temp agency or employment agency, as well as to vocational or educational training with or without pay.            

Here are the highlights:

Job Applications. Application forms may not include any question seeking information about criminal history.

Advertisements. All solicitations or advertisements seeking job applicants must include a statement that the employer will consider qualified applicants who have criminal histories in a manner consistent with the ordinance.

Conditional Offer. No questions about criminal history are allowed before a conditional offer of employment has been made – meaning an offer that is conditioned on an assessment of the applicant’s criminal history and how it relates to the duties of the job being offered. The meaning of employment here is broader than normal. The law also applies to the retention of independent contractors and unpaid interns.

Written Assessment. Before withdrawing a conditional job offer, the employer must perform a written assessment “that effectively links the specific aspects of the Applicant’s Criminal History with risks inherent in the duties of the Employment position sought by the Applicant.” The written assessment must consider, at a minimum, the three key factors that the Equal Employment Opportunity Commission considers essential to an effective “individualized analysis”:
<ul>
 	<li>The nature and gravity of the offense or conduct;</li>
 	<li>The time that has passed since the offense, conduct and/or completion of the sentence; and</li>
 	<li>The nature of the job held or sought.</li>
</ul>
Fair Chance Process and Pre-Adverse Action Notice. Before the employer can withdraw the offer, the employer must provide the applicant with a copy of the written assessment and other documentation supporting the potential decision. The “other documentation” requirement is vague in the ordinance but could mandate providing a copy of the job description, since the written assessment must include a review of the applicant’s criminal history in light of the requirements of the job.

The employer must give the applicant at least five business days to contest the assessment or to provide additional information that the applicant would like considered.

If the employer learned of the criminal history through a formal background check, these requirements become part of the Pre-Adverse Action Notice that employers must provide before they make an adverse decision that is based, in whole or in part, on information in a criminal background check. Federal and California law already require that a Pre-Adverse Action Notice be sent to the applicant along with a copy of the background check and a Notice of Summary of Rights under the Fair Credit Reporting Act. In Los Angeles, employers must now also provide a copy of the written assessment and other supporting documentation.

No final decision can be made until after the required five business days have passed.

Meanwhile, if the applicant provides additional information or documentation in response to the assessment or Pre-Adverse Action Notice, the employer must consider the new information and perform a written reassessment.

If the employer still wishes to revoke the offer, the employer must provide the applicant with a copy of the written reassessment. If the employer conducted a criminal background check, the written reassessment should be provided at the same time as the Adverse Action Notice required under the Fair Credit Reporting Act and California law.

Notice and Poster. Employers must post a notice informing applicants that the employer follows all provisions of the Fair Chance Initiative. The notice must be placed in a conspicuous place visited by job applicants. Employers with unions must also send a copy of the notice to the union or worker representative.

No Retaliation. Employers cannot retaliate against anyone who complains about noncompliance or who tries to enforce rights granted under the ordinance.

Record Retention. Employers must keep all job applications, written assessments and reassessments for three years.

Exceptions. The ordinance does not apply to jobs that require possession of a firearm or that, by statute, cannot be held by someone with a criminal conviction.

Enforcement. The law takes place immediately, but until July 1, 2017, the only penalty for noncompliance will be a written warning. Starting July 1, 2017, employers that violate the ordinance may be subject to penalties of $500 for a first violation, $1,000 for a second violation and $2,000 for each subsequent violation. The city will be primarily responsible for enforcing the law, but rejected job applicants can also file a civil suit if they first complain to the city and exhaust administrative remedies.

The Bottom Line. The Fair Chance Initiative is more about procedure than outcome. The law forces private employers in Los Angeles to consider ex-offenders but does not force employers to hire them. Nonetheless, the procedural requirements imposed by this law are significant.

While several states and localities have ban-the-box laws, the Los Angeles ordinance is unusual in the number of steps employers must follow before they make an adverse decision. The Ban the Box movement continues to grow, and employers should actively monitor new developments to ensure their hiring processes remain compliant with state and local law.

Los Angeles Joins Ban the Box Movement