December 30th, 2016 | Debbie Lamb, Sterling Talent Solutions

Fair Chance Initiative Goes Into Effect in LA

EEOC Laws Capitol Building

On December 9, 2016, the city of Los Angeles joined a growing number of American cities who have passed “ban the box” legislation, including Portland who recently adopted the law. Los Angeles Mayor Eric Garcetti signed the Los Angeles Fair Chance Initiative for Hiring, impacting employers and job applicants within the Los Angeles market.

This law affects all employers, including job placement and employment agencies, located or doing business in the City of Los Angeles with 10 or more employees. Employment includes temporary and seasonal work, contracted, contingent, through an employment agency or any form of educational or vocational training with or without pay. The new law prohibits an employer from asking on an application or seeking information about an individual’s criminal history until after a conditional offer has been made.

Fair Chance Initiative for Hiring and Adverse Action Process

The law also enhanced the adverse action process compared to the requirements in the Fair Credit Reporting Act and requires an employer to follow these steps:

  • Before taking adverse action against an applicant, the employer must perform a written assessment that links the applicant’s criminal history with the position being sought by the applicant. The employer must consider the nature and gravity of the offense, the time since it has occurred and the nature of the position sought as well as any rules or guidelines from the Designated Administrative Agency responsible for enforcement.
  • Prior to an employer taking adverse action, an employer must provide the applicant a copy of the written assessment performed and allow the individual a “Fair Chance Process.” The Fair Chance Process is an opportunity for the applicant to respond with any information regarding the accuracy of the record or any mitigating factors.
  • An employer must then give the applicant five business days to respond.
  • If the applicant responds to the Fair Chance Process, the employer must consider the information provided and perform a written re-assessment of the adverse action decision. If the employer wants to continue the adverse action process, the employer must provide the applicant with a copy of the written re-assessment.

Further Employer Obligations under the New Law

The Los Angeles Fair Chance Ordinance also requires employers to do the following when advertising or posting a notice about open job positions:

  • Employers must state in all advertisements: “The employer will consider qualified applicants with criminal histories in a manner consistent with the Los Angeles Fair Chance Initiative for Hiring.”
  • Employers must post a notice at each workplace and send to each labor union the requirements of this law.
  • Employers must retain all records for three years from the receipt of the applicant’s application.

Exceptions to the Fair Chance Initiative for Hiring

The law does not prohibit an inquiry into a criminal record, assessment or posting requirements in the following situations:

  • The employer is required by law to ask about an applicant’s criminal history.
  • The applicant is required to possess a firearm in his or her employment.
  • A person convicted of a crime is prohibited from holding the position sought.
  • An employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Compliance Information

The new law will go into effect on January 22, 2017 with penalties starting on July 1, 2017. Employees or job applicants alleging violation of the law have one year to bring a claim to the Department of Public Works. Employers may not retaliate against an employee or applicant for reporting any alleged violation of the Fair Chance Ordinance or for participating in the Fair Chance Process. Fines could be up to $500 for the 1st violation, $1000 for the 2nd violation and up to $2000.00 for the 3rd and subsequent violations. Companies are advised to consult with legal counsel prior to implementing any changes to their employment screening program. For more information about “ban the box” laws download our white paper, Ban the Box is Out of Control: What You Need to Know to Protect Your Business.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.