Los Angeles Issues Regulations Implementing Fair Chance Initiative for Hiring Ordinance

Ordinance and Regulations Now in Effect

The City of Los Angeles has released regulations implementing its Fair Chance Initiative for Hiring (Ban the Box) Ordinance.

Background
The ordinance—generally applicable to (among other entities) employers that are located or doing business in Los Angeles, and that employ 10 or more employees—limits employers’ consideration of applicants’ criminal history. The ordinance contains provisions regarding (among other things) employment application procedures, employer assessment of criminal history, notice, postings, and recordkeeping.

Note: City contractors are subject to a related separate ordinance.

Regulations
Highlights of the regulations include the following:

• Definition of Applicant. An “applicant” is an individual who submits an application or other documentation for employment to an employer—regardless of location.
• Prohibited Statements on Job Applications. Statements in an application for employment such as “[c]riminal background checks must be passed to be considered for a position,” or similar, cannot be included.
  • Note: The regulations include tips on how to use the same job application for multiple jurisdictions. Click here (Regulation 2, § A(1)(a)) for more information.
• Clarification of Prohibited and Permitted Actions. The ordinance does not prevent an employer from looking into an applicant’s background and experience to verify qualifications for an employment position, including asking for resumes and references and performing general internet searches. However, a violation of the ordinance would include trying to discover an applicant’s conviction history prior to an offer of employment.
• Timing of Criminal History Checks. If an applicant has been made a conditional offer of employment, then (at this point) an employer is allowed to perform a criminal history check on the applicant. The employer is required to follow any local, state, and federal requirements for requesting a review of an individual’s criminal history.
• Outline of the Fair Chance Process. When an employer proposes to withdraw an offer of employment (based on the individualized assessment required under the ordinance), the employer must give the applicant an opportunity to present additional information through a “Fair Chance Process.” (See Regulation 2, § C for the specific requirements.) If the applicant does not submit any documentation within the required time period (5 business days), the employer can take the proposed adverse action decision without any additional requirements under the ordinance.
  • Note: If the applicant submits any documentation, then the employer must perform a reassessment of the proposed adverse action using the same process as the original assessment, but taking into consideration the information and/or documentation submitted by the applicant.
• Recordkeeping. If an employer relied on oral information to form a determination of adverse action, the employer should summarize this information by putting it in writing and maintain it with its employment records (e.g., a verbal reference check with a former employer should be documented).

Additional details (including exceptions) are contained in the text of the regulations. The ordinance and regulations are currently in effect.