City Of Los Angeles “Bans The Box,” Restricting Inquiries Into Criminal Histories Of Employment Applicants

On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) ordinance. The ordinance applies to employers located or doing business in the City of Los Angeles that have ten or more employees who perform at least two hours of work each week in the City of Los Angeles. Such covered employers are now prohibited from inquiring about or requiring disclosure of an applicant’s criminal history unless and until a conditional offer of employment is made. The ordinance also prohibits including on any application forms any questions that seek the disclosure of an applicant’s criminal history. Employers can, however, make written or verbal inquiries regarding an applicant’s criminal background after first making a conditional offer of employment. This is significant because the offer must be conditioned on the employer’s evaluation of the individual’s criminal history. The ordinance protects all applicants – for both exempt and non-exempt positions.

Additionally, the City of Los Angeles’ new ordinance prohibits covered employers from withdrawing any conditional offer of employment due to criminal background checks unless the employer completes a written assessment that links the individual’s criminal background history with “risks inherent in the duties” of the position that he or she was conditionally hired to perform. As part of this assessment, the employer must consider the following factors: (1) the time that has elapsed since the offense, (2) the individual’s age at the time of the offense, (3) circumstances surrounding the offense, (4) the number of offenses for which the individual has been convicted, (5) employment history before and after conviction, (6) evidence of rehabilitation, and (7) other mitigating factors.

Before withdrawing any conditional offer of employment due to an applicant’s criminal history, the employer must notify the applicant in writing five business days in advance. This is meant to allow the individual to provide any additional information or documentation relevant to the employer’s evaluation. If the employer still decides to withdraw the offer, the employer must again notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

The ordinance also requires that any employment solicitations and advertisements notify applicants of their rights pursuant to this ordinance, and that employers keep all documents related to applications and the written assessments for three years.

There are significant exceptions to this ordinance, as it specifically excludes employers who are required by law to obtain information regarding an applicant’s conviction or who are prohibited by law from hiring someone who has been convicted of a crime. The ordinance also does not apply to an individual who, because of a criminal conviction, cannot lawfully hold the position, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. Finally, the ordinance does not apply to an applicant who would be required to possess or use a firearm in the course of employment.

Violation of the ordinance could result in penalties or in a private right of action against an employer. For this reason, employers in Los Angeles are encouraged to review their policies, procedures, practices and employment applications in light of this new ordinance. Please contact your SFSS&W attorney to ensure compliance, or should you have any questions regarding this or other labor and employment law matters

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If you have any questions, please contact your SFSSW attorney. If you do not presently have an attorney with the firm, please contact Millicent Sanchez, Janet Swerdlow, or David Wimmer.

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