Los Angeles County Enacts Fair Chance Ordinance

On September 3, 2024, the County of Los Angeles implemented the Fair Chance Ordinance (FCO), significantly impacting employers by establishing clear guidelines for the treatment of applicants with criminal histories. The ordinance aligns with national “ban-the-box” initiatives and introduces new obligations aimed at ensuring fair consideration of individuals with criminal backgrounds. Employers operating within unincorporated areas of the County must understand these requirements to maintain compliance and avoid potential penalties.

Key Provisions of the Fair Chance Ordinance

1. Applicability: The FCO applies to employers with five or more employees who are engaged in work within unincorporated areas of Los Angeles County. This threshold includes employees working remotely as long as the work is performed within these regions. The ordinance applies to full-time, part-time, seasonal, and temporary workers, as well as contractors.
2. Prohibition on Early Criminal History Inquiries: In line with many fair chance policies, the ordinance prohibits employers from inquiring about an applicant’s criminal history until a conditional offer of employment has been made. This means that employers cannot ask about criminal records on job applications, during initial interviews, or before an offer is extended.

New Requirements for Job Postings

One of the most significant changes introduced by the ordinance is the requirement for specific language in job postings. All job advertisements, whether posted online or in print, must include a clear statement indicating that the employer will consider qualified applicants with criminal histories in accordance with the FCO. This language is designed to ensure transparency and signal to prospective applicants that they will be fairly assessed without automatic disqualification based on their criminal records.

Employers should update all job postings and employment materials to comply with this new requirement. Failure to do so could result in fines or other penalties.

Individualized Assessment Requirement

A major focus of the Fair Chance Ordinance is on individualized assessments. Once a conditional offer has been made, if an employer seeks to withdraw the offer based on an applicant’s criminal history, they must first conduct an individualized assessment. This assessment should be comprehensive and take into account several factors, including:

• The nature and gravity of the offense or conduct.
• The time that has passed since the offense or conduct.
• The nature of the job being sought.

This evaluation is essential to ensure that decisions are made fairly, considering the unique circumstances surrounding each applicant. Blanket policies that automatically disqualify candidates based on their criminal records are prohibited.

Notice of Adverse Action: If, after the individualized assessment, the employer decides to take adverse action (such as rescinding the job offer), they must follow a formal notice procedure. The applicant must be provided with a written notice of the decision, which includes:

1. A copy of the criminal history report that led to the decision.
2. The employer’s justification for why the applicant’s criminal history disqualifies them from the position.
3. Information about the applicant’s right to dispute the decision, including the opportunity to provide additional information or documentation.

Applicants must be given at least five business days to respond to the notice, during which they can submit mitigating information or documentation. The employer is required to consider any additional information provided before making a final decision.

Record Retention Requirements

The Fair Chance Ordinance imposes specific record retention requirements. Employers are required to retain records related to job applications, hiring decisions, and any adverse actions for at least three years. These records must include documentation of individualized assessments, applicant communications, and criminal history reports.

This requirement serves two key purposes:

1. It allows the County to conduct audits or investigations to ensure compliance with the ordinance.
2. It enables employers to demonstrate that they have followed the required procedures if disputes or complaints arise.

Employers should establish clear record-keeping practices to ensure that all relevant documentation is preserved and organized. Given the three-year retention period, adopting digital record-keeping systems may be beneficial for tracking compliance over time.

Penalties for Non-Compliance

Non-compliance with the Fair Chance Ordinance can result in significant penalties. Violations can lead to administrative fines, damages, and even legal action. Employers may face fines of up to $500 for the first violation, $1,000 for the second, and $2,000 for subsequent violations. Additionally, aggrieved applicants may file complaints or lawsuits, which could result in further costs, including back pay or reinstatement.

Practical Steps for Employers

To comply with the Fair Chance Ordinance, employers should take the following steps:

1. Review and update hiring practices: Ensure that all hiring processes, including job postings and application forms, comply with the ordinance. Eliminate any questions about criminal history from initial application stages and ensure that conditional offers are made before conducting background checks.
2. Revise job postings: Add the required statement regarding consideration of qualified applicants with criminal histories to all job advertisements.
3. Train HR staff and hiring managers: Provide training on the individualized assessment process and ensure that all staff involved in hiring decisions understand their obligations under the ordinance.
4. Implement record-keeping systems: Ensure that records of hiring decisions and criminal background checks are retained for at least three years.

By proactively addressing these requirements, employers can not only avoid penalties but also contribute to a more equitable hiring environment. The Los Angeles County Fair Chance Ordinance represents a significant step toward eliminating barriers for individuals with criminal histories, and employers must be diligent in adapting their practices to meet the new standards.

 

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Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!

 

 

The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.