On November 30, the Los Angeles City Council approved ban the box legislation via Council File: 14-0746. As the vote was not unanimous, the proposed legislation will be up for reconsideration December 7th, but it is believed the legislation will move forward and that Mayor Eric Garcetti will sign.
The “Los Angeles Fair Chance Initiative for Hiring” extends far beyond traditional ban the box laws that simply regulate the timing of the criminal history question. Impacted employers should review the law’s requirements closely and modify practices accordingly.
Definitions
Employers doing business or located in the City with ten or more employees are impacted. “Employee” is defined broadly to include any individual who performs at least two hours of work on average each week within the geographic boundaries of the City and who qualifies as an employee entitled to payment of minimum wage under the California minimum wage law. The definition of “employment” includes seasonal, temporary, part-time, contracted or contingent work, work on commission and employment through the services of a temporary or employment agency.
Criminal History Inquiry Timing
Under the legislation, employers cannot inquire into or require disclosure of an individual’s criminal history until after extending a conditional offer. Likewise, employers may not include the criminal history question on an employment application.
Adverse Action & Fair Chance Process
Employers are prohibited from taking adverse action based on an individual’s criminal history unless a written assessment is conducted that “effectively links the specific aspects” of the individual’s criminal history “with risks inherent in the duties” of the position sought. At a minimum, employers must consider the three factors outlined by the Equal Employment Opportunity Commission: the nature and gravity of the offence or conduct, the time that has passed since the offence or conduct and the nature of the job held or sought.
Following the written assessment, employers may still not take adverse action against an individual until after conducting the “Fair Chance Process”. Under the Fair Chance Process, employers must provide the individual with written notification of the potential adverse action, a copy of the written assessment and any other information or documentation that supports the decision. Employers must then wait at least five (5) business days before making a final decision. If an applicant provides additional information or documentation, employers must take that into consideration and perform a written reassessment of the proposed adverse action. Finally, if adverse action will still be taken, the applicant must be notified and provide a copy of the written reassessment.
Notice & Posting Requirements
Employers must all state in all job advertisements and solicitations that qualified applications with criminal history will be considered for employment.
Additionally, employers must post a notice informing individuals of the law’s provisions in a conspicuous place at every workplace, job site or other location within the City under the employer’s control. A copy of the notice must also be sent to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement.
Retaliation & Records Retention
Employers are prohibited from discharging, reducing the compensation of or otherwise taking action against any employees who complain to the City or who seek to enforce his or her rights under the law.
The law requires employers to retain all records and documents related to employment applications, written assessments and reassessments for a period of three years following receipt of an individual’s employment application.
Exceptions
There are limited exceptions under the law:
An employer is required by law to obtaining information regarding criminal conviction/criminal history.
The applicant would be required to possess or use a firearm in the course of employment.
An individual is prohibited by law from holding a position based on his/her criminal history (regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation).
An employer is prohibited by law from hiring an individual who has been convicted of a crime.
Enforcement & Penalties
The law provides for both civil and administrative enforcement. An individual may bring a civil action against an employer once he or she has reported the alleged violation to the Designated Administrative Agency (DAA) and the administration enforcement process has been completed. The individual has a one (1) year period to then file the civil suit.
The DAA will investigate any complaints, and may request the Board of Public Works to issue a subpoena for records and documents including relevant books, papers and other items. If the DAA determines an employer has violated the law, the employer must immediately cure the violation and may also be subject to administrative fines.
Penalties and administrative fines may be up to $500 for the first violation, $1,000 for the second violation and $2,000 for the third and subsequent violations for all provisions except the notice, posting and record retention requirements. Violations of those requirements may result in a $500 fine per violation.
Fines will be administered beginning July 1, 2017. Until that time, the DAA will issue written warnings.
