As of September 3, 2024, employers in the unincorporated areas of Los Angeles County must comply with the Los Angeles County Fair Chance Ordinance (FCO), which places restrictions on criminal background screening beyond those required by California’s Fair Chance Act (Fair Chance Act).
Background – the Fair Chance Act
The Fair Chance Act (also known as “Ban the Box” law) bans employers with five or more employees from including any question on a job application that asks about the applicant’s criminal conviction history. Covered employers also may not inquire about or consider an applicant’s criminal history until the applicant has received a conditional job offer. If an employer does conduct a lawful background check and decides to rescind an offer based on an applicant’s conviction history, the employer must (1) make an individualized assessment of whether the applicant’s conviction history relates to the specific job duties; (2) notify the applicant in writing of the preliminary decision; (3) grant the applicant at least five business days to respond before making a final decision; and (4) give the applicant an additional five business days to dispute the accuracy of their criminal history record and to seek evidence to support that contention. The Fair Chance Act also bans covered employers from considering certain convictions, including those that have been sealed, dismissed or expunged, and generally does not allow employers to consider arrests that did not result in convictions (subject to certain exceptions). Additional information published by the California Civil Rights Department regarding the Fair Chance Act can be found online.
The FCO
Now, employers that operate in unincorporated parts of Los Angeles County (including employees who work remotely from areas within the unincorporated areas of the County) must also comply with the FCO. A comprehensive list of unincorporated areas of Los Angeles County can be found on the county website. The FCO goes further than the Fair Chance Act in several ways, including by:
- Prohibiting employers from preventing or discouraging applicants or employees with criminal history from applying or responding to in all job solicitations, bulletins, postings, announcements and advertisements (collectively “Job Postings”).
- Requiring employers to include language stating that qualified applicants with arrest or conviction records will be considered for employment in accordance with the FCO and the Fair Chance Act in all Job Postings.
- Requiring employers that intend to conduct a criminal background check to list the material job duties of the specific position that the employer believes may have a direct, adverse and negative relationship with the applicant’s criminal history in all Job Postings.
- Requiring employers to include information in all Job Postings on any other applicable federal, state or local laws.
- Prohibiting employers from including statements in Job Postings indicating that applicants with criminal histories will not be considered (for example, “No Felons” or “No Convictions”).
- Prohibiting employers from stating in Job Postings that an applicable must have a clean background or must pass a background check.
- Prohibiting employers from inquiring about or creating opportunities for an individual to voluntarily disclose their criminal history prior to a lawful background check.
- Prohibiting employers from ending a job interview or reject a job application based on criminal history that is prematurely provided by the applicant or employee or learned from any other source, or because the applicant or employee did not provide criminal history information.
- Prohibiting employers from asking or requesting that an applicant/employee provide criminal history information before the employer receives the criminal background check report.
- Requiring that employers provide applicants with a copy of their criminal background check report before discussing any criminal history information or requesting further information from the applicant/employee.
- Requiring that an employer provide written notice to an applicant or employee that includes specific information about a criminal background check, such as in a conditional offer letter, which must include (i) a statement that the conditional offer is contingent upon the review of the individual’s criminal history; (ii) a statement that the employer has “good cause” to conduct a review of criminal history for the specific job position with supporting justification provided in writing. A general statement that the employer is performing a review of criminal history due to “safety concerns” without more supporting justification is not sufficient to meet this requirement; and (iii) if the employer is reviewing additional information, a complete list of all types of information, background or history that will be reviewed by the employer, including but not limited to: education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, or medical examinations.
- An employer can establish good cause if it can demonstrate any of the following: (i) the employer faces a significant risk to its business operations or business reputation unless a review of criminal history is conducted for the specific job position or (ii) a review of criminal history is necessary for the specific job position due to articulable concerns regarding the safety of, or risk of harm or harassment to, the employer’s staff, employees, contractors, vendors, associates, clients, customers or the general public.
- Requiring specific, enumerated factors to be included in an individualized assessment prior to an employer taking adverse action against an applicant/employee based on a criminal background check.
- Requiring an employer that intends to withdraw a job offer after an individualized written assessment to provide the applicant with certain information, including notice of the applicant’s right to file a compliant with the Los Angeles County Department of Consumer and Business Affairs (DCBA) and the California Civil Rights Department.
- Specifying that if the applicant/employee has obtained a license, certificate, authorization, or any other similar credential from a licensing, regulatory, or other government agency or board required for the applied-for job position, it will be presumed the applicant/employee criminal history is not directly, adversely and negatively related to the specific duties of the job position. That said, the presumption is rebuttable, and the employer must provide an explanation in the initial individualized written assessment.
- Mandating certain notice, posting and recordkeeping requirements.
- Creating a rebuttable presumption that an adverse action that occurs within 90 days of an employee’s exercise of rights under the FCO is unlawful retaliation.
The FCO grants the DCBA the authority to enforce the FCO. An employer that violates the FCO may be liable for $5,000 per applicant/employee for a first violation, $10,000 per applicant/employee for a second violation, and $20,000 per applicant/employee for a third or subsequent violation. Employees may also bring a private right of action within one year after filing an intent-to-sue notice with the DCBA or after the DCBA concludes any administrative process.
Los Angeles County has published some useful FAQs online.
Conclusion
The FCO covers employers with five or more employees in any location, and which “is located or doing business in the unincorporated areas of Los Angeles County.” Covered employers and those covered employers with even one employee who works in the unincorporated areas of Los Angeles County should take heed of the FCO.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.