Los Angeles has become the next city to enact “ban the box” legislation. Under the Los Angeles Fair Chance Initiative for Hiring Ordinance, also referred to as the city’s “ban the box” ordinance, employers of 10 or more employees are prohibited from asking candidates about their criminal history during the application process. Although this law has already taken effect, employers have been given a grace period until July 1 to ensure their hiring practices are in compliance before they are subject to penalties for violations.
Employers operating within the City of Los Angeles need to remove all questions relating to a candidate’s criminal history from their application forms. Additionally, employers will need to wait until after a conditional offer of employment has been made to the applicant before asking about or searching for information about the applicant’s criminal history. While the LA timing requirement is similar to the one under the Fair Chance Act enacted by New York City, it differs from San Francisco’s “ban the box” ordinance, which only prevents employers from inquiring about an applicant’s criminal history until after the initial job interview.
After a conditional offer of employment has been made, employers may seek information regarding a candidate’s criminal history. If, after obtaining criminal history information, an employer wishes to take adverse action, such as rescinding the offer or otherwise refusing to employ the candidate, then they must follow the “Fair Chance Process” laid out in the ordinance.
The Fair Chance Process requires employers who wish to take adverse action against an applicant, after learning of the applicant’s criminal history, to first perform a “written assessment.” The written assessment must link specific aspects of the candidate’s criminal history with inherent risks associated with the candidate’s prospective job duties. To complete this assessment, employers need to conduct an individualized appraisal and consider various factors identified by the Equal Employment Opportunity Commission (EEOC). These factors include the nature and gravity of the offense or conduct; the time that has passed since the offense, conduct, or completion of the sentence; and the nature of the job being sought.
Under the ban the box ordinance, Los Angeles employers must maintain all documents relating to each candidate’s job application, as well as written assessments and reassessments, for three years. Additionally, the ordinance contains requirements for job solicitation materials and notices.
Individuals may bring a civil claim against employers who violate the Ordinance; however, complaints must first be reported to the Department of Public Works, Bureau of Contract Administration, within one year of the violation. Employers may encounter fines of up to $500 for their first violation, $1,000 for a second violation, and $2,000 for third and subsequent violations relating to the Ordinance’s requirements for timing of inquiries and the Fair Chance Process. Violations of notice and posting requirements carry penalties of up to $500 for each offense.
To avoid these penalties, LA employers need to immediately update their applications, as well as all job postings, solicitations, and other employment advertisements. Further, employers may wish to provide training to managers, and others who conduct interviews and hiring, to ensure that questions relating to an applicant’s criminal history are not asked until after a conditional offer of employment has been made.