The Los Angeles County Fair Chance Ordinance makes it one of the most onerous to date.
The Basics
Location: Unincorporated Los Angeles County, California
Legislation: Ordinance No. 2024-0012
Type: Ban the Box / Fair Chance
Operative: September 3, 2024
· Requires Employers to provide notice of their intent to conduct a background check.
· Prohibits inquiries into criminal history prior to the Employer receiving a copy of the criminal background check report.
· Employers have additional obligations if they consider, or take, adverse action against an individual because of the individual’s criminal history. These include but are not limited to: (i) sending via email and mail; (ii) notifying individuals of specific criminal offense(s); (iii) an initial and secondary individualized assessment and (iv) including specific language.
· Employers may not take adverse action due to a delay in the background check unless specific requirements are met as shared below.
Who does this Ordinance apply to?
The Ordinance will apply to any individual, firm, labor organization, group of persons, or other organizations however organized, located, or doing business in the unincorporated areas of Los Angeles County that employs five (5) or more employees performing at least two hours of work each week within the unincorporated areas of the County.
What restrictions does an Employer have when soliciting criminal history from the applicant or third-parties?
In connection with the conditional offer, Employers must provide notice to the individual of their intent to conduct a background check and review their criminal history. The notice must include:
· That the offer is contingent upon the review of the individual’s criminal history;
· Express that they have good cause to conduct a review of the criminal history for the specific job position with supporting justification. If the Employer demonstrated the following, they have established “Good cause”:
o There is significant risk to the Employer and its business operations/reputation unless a review of their criminal history is conducted; or
o There are “articulable concerns” related to the safety of, or risk of harm, to employees, contractors, clients and others as defined by the Ordinance.
· A complete list of all searches or other types of information the Employer will review in connection with the conditional offer of employment including, but not limited to, education, employment history and driving records.
In addition, Employers may not inquire into the individual’s criminal history until the Employer has obtained a copy of the criminal background report and, subsequently, provided it to the individual.
Can an Employer consider an individual’s criminal history?
Yes, however, an Employer may not inquire into, receive, or take adverse action on the following types of criminal history:
· Arrest not followed by a conviction;
· Referral or participation in a pre- or post-trial diversion or a deferral program;
· Convictions that are sealed /expunged/dismissed/similarly eradicated or pardoned;
· An offense subject to the jurisdiction of the juvenile court;
· Non-felony conviction for possession of marijuana that is two or more years old;
· A Conviction that is more than 7 years old, based on date of disposition;
· Offenses other than a felony or misdemeanor;
· Any offense that has since been decriminalized since the date of the conviction.
Can an Employer take adverse action based on an individual’s criminal history?
Yes, if all requirements are followed and met. For example, if an Employer intends to take any adverse action based on criminal history, the Employer must first conduct an Initial Individualized Assessment, documented in writing, of whether the candidate’s criminal history has a direct, adverse, and negative bearing on the person’s ability to perform the job duties.
What is required for an initial and second individualized assessment?
An Employer must consider the following when conducting an Initial or Second Individualized Assessment:
(1) the nature and gravity of the offense or conduct;
(2) the time that has passed since the offense or conduct and/or completion of the sentence;
(3) the nature of the position, including consideration of the specific job duties; and
(4) consideration of any evidence of rehabilitation or mitigating circumstances provided by the individual.
What are the requirements for an Employer to take adverse action?
After performing the initial individualized assessment, if the Employer intends to take adverse action, a preliminary notice of adverse action must be provided and sent via mail and email containing the following:
(1) Notice of intent to take adverse action;
(2) the right to respond to the preliminary notice before a final decision is made which includes:
a) the waiting periods and timelines to respond, which must be displayed in bold font, underlined, or in all capital letters and
b) their response may include evidence challenging the accuracy of the criminal background check report and/or submission of evidence of rehabilitation or mitigating circumstances;
(3) a copy of the initial written individualized assessment;
(4) the disqualifying conviction(s) that are the basis for the intended adverse action; and
(5) a copy of the criminal background check report or any other information the Employer has relating to the criminal history.
An Employer must wait at least five (5) business days from receipt of the preliminary notice of adverse action, as defined by the Ordinance, before taking adverse action. The individual must be provided ten additional business days if they notify the Employer that they dispute the accuracy of the criminal background check or they are taking steps to obtain evidence of rehabilitation or mitigating circumstances.
If after performing the Second Individualized Assessment, a final decision is made to take adverse action, an Employer must notify the individual via mail and email with the following:
(1) Final notice to withdraw conditional offer;
(2) A copy of second individualized assessment;
(3) Notice of disqualifying conviction(s);
(4) The existing procedure Employer has to challenge the decision;
(5) A notice of their right to file a complaint with the Los Angeles County Department of Consumer and Business Affairs (DCBA) for violation of the County’s Fair Chance Ordinance for Employers, and with the state’s Civil Rights Department for violation of the Fair Chance Act.
There are additional requirements if the Employer is providing the final adverse action notice more than 30 calendar days after the individual provided a response to the Employer's preliminary adverse action notice as it will be presumed the Employer's delay in responding to individual was untimely, and in violation of the Ordinance.
Can an Employer take adverse action if the background check is taking too long?
Yes. An Employer must wait ten business days since the Employer requested the criminal background check, demonstrate it would have a critical business impact to wait for receipt of the background check, and follow the applicable pre-adverse and adverse action processes as defined.
Are there other requirements?
Yes. We recommend all impacted Employers review this Ordinance carefully with their legal counsel to understand all their obligations.
Are there any exceptions?
Yes. We recommend reviewing with your legal counsel to confirm if your organization meets the exemptions as defined in the Ordinance.
Recommendations
We recommend to review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. Accurate Background is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. Accurate Background makes no assurances regarding the accuracy, completeness, currency, or utility of the following information.
