• LA City Council Adopts "Ban The Box" Ordinance Limiting Employers From Asking About Criminal History
  • January 6, 2017 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • The Los Angeles City Council recently voted 12-1 in favor of adopting the Los Angeles Fair Chance Initiative for Hiring, also known as "Ban the Box." This ordinance limits private employers in Los Angeles from asking about a job applicant's criminal history until the applicant has received a conditional offer of employment. The ordinance also requires job advertisements to state that the employer will seek applicants with criminal histories. The Ban the Box ordinance is expected to go into effect January 22, 2017.

    Whom Does the Ordinance Apply To?

    Applicants
     
    The Ban the Box ordinance applies to individuals who submit an application or other documentation for the purpose of obtaining employment.

    Employees
     
    The ordinance applies to employees that (1) perform at least two hours of work on average each week within the geographic boundaries of Los Angeles, and (2) are entitled to minimum wage under Section 1197 of the California Labor Code.

    Employers
     
    As for employers, the ordinance applies to: individuals, firms, corporations, partnerships, labor organizations, groups of persons, associations, or other organizations. The employer must (1) be located or doing business is Los Angeles, and (2) employ 10 or more employees, including owners, management, and supervisorial employees. The City of Los Angeles and all other state and federal governmental units are not employers subject to the ordinance.

    Exemptions
     
    Employers are exempt from (1) the job application requirements, (2) the job advertisement requirements, and (3) the "Fair Chance Process" under the ordinance when:
    • The employer is required by law to obtain information about convictions.
    • The employer is prohibited by law from hiring an applicant who has been convicted of a crime.
    • The applicant would be required to possess or use a firearm in the course of their employment.
    • An applicant who has been convicted of a crime is prohibited by law from holding the position sought.
    Next Steps for Employers
     
    Job Applications: Remove Questions About Criminal History
     
    Employers must remove any question on an application that seeks the disclosure of criminal history. "Criminal history" means any information regarding convictions, including criminal history reports produced by law enforcement agencies.
     
    Additionally, employers cannot ask about or require the disclosure of criminal history, at any time or by any means, unless a conditional offer of employment has been made. A conditional offer of employment is defined by the ordinance as a job offer that is conditioned "only on an assessment of the Applicant's Criminal History, if any, and the duties and responsibilities of the Employment position."
     
    Job Advertisements: State That You Will Consider Applicants with Criminal Histories
     
    Solicitations or advertisements seeking job applicants must state that the employer will consider applicants with criminal histories in a manner consistent with the requirements of the ordinance.
     
    Provide a "Fair Chance Process" Once a Conditional Offer Has Been Made
     
    After making a conditional offer of employment to an applicant, the employer cannot withdraw the offer or refuse to employ the applicant based on their criminal history unless the employer performs a written assessment of the applicant's criminal history. This assessment must show the connection between the applicant's criminal history and the risks inherent in the duties of the position.
     
    Should it be necessary to withdraw an offer or refuse to employ the applicant based on their criminal history, the applicant must be provided a "Fair Chance Process." This means that the employer must provide the applicant with (1) written notification of the withdrawal or refusal to hire, (2) a copy of the written assessment regarding the applicant's criminal history, and (3) any other information or documentation supporting the employer's decision.
     
    After providing the above documents to the applicant, the employer cannot fill the position for at least 5 business days so that the applicant has an opportunity to provide further information to the employer regarding the accuracy of his/her criminal history. If the applicant does provide such additional information, the employer must then perform a written reassessment of the applicant's criminal history considering the additional information. Should the employer still decide to withdraw the offer of employment or refuse to hire the applicant after the reassessment, the employer must notify the applicant of this decision and provide a copy of the reassessment.
     
    Post Notice Informing Applicants of the Ordinance
     
    Employers must post a notice informing applicants of the provisions of the Ban the Box ordinance in a conspicuous place at every workplace, job site or other location under the employer's control visited by applicants. A copy of this notice must be sent to each labor union or representative that has a Collective Bargaining Agreement with the employer.
     
    Retain Records for Three Years
     
    Employers must retain all records and documents related to an applicant's job application, including written assessments, for three years following the receipt of the application. Upon request, employers must provide such records in any administrative enforcement proceeding brought under the ordinance.
     
    Do Not Retaliate Against Employees That Complain About Compliance
     
    Employers cannot discharge, reduce compensation, or take any other adverse employment action against employees that complain to the City of Los Angeles about the employer's compliance with the ordinance. Employers also cannot take adverse employment actions against employees that oppose practices required by the ordinance, participate in proceedings related to the ordinance, or seek to enforce their rights under the ordinance.