For many people emerging from the criminal justice system, finding employment opportunities can be one of the most challenging steps in reintegrating into society. Los Angeles has passed laws designed to regulate how employers can consider the criminal history of job candidates in an effort to ensure everyone has fair employment opportunities. While employers can still access criminal histories, they cannot do so until specific points in the hiring process.
The Los Angeles County Fair Chance Ordinance for Employers (“FCO”) was adopted by the Los Angeles County Board of Supervisors on February 7, 2024, and becomes effective on September 3, 2024. Los Angeles County employers must understand these laws and abide by the regulations to avoid potential penalties. Let’s look more closely at this Los Angeles Fair Chance ordinance and what it means for business owners in the area.
Understanding the Los Angeles Fair Chance Ordinance
What is the Los Angeles Fair Chance Ordinance?
The Fair Chance Ordinance extends across Los Angeles proper and its unincorporated regions. This new employment law regulates the timing and methods by which employers can review a job applicant's criminal history. The ordinance's intention is to enhance employment opportunities for individuals who have served their time and are seeking a fair opportunity to re-enter the workforce.
The FCO was drafted to complement California’s “Ban-the-Box” law, the Fair Chance Act (“FCA”). The new ordinance introduces additional compliance requirements for covered employers, including, but not limited to, mandatory language for job requisitions and written notice requirements at the conditional offer of employment stage of the hiring process.
Does this apply to my organization?
The FCO applies to employers located or doing business in the unincorporated areas of Los Angeles County and employing five (5) or more employees, regardless of location. To determine whether an employer meets this five-employee threshold, an employer must count any person who performs at least two (2) hours of work on average each week within the unincorporated areas of the County for the employer, including part-time, temporary/seasonal employees, independent contractors, and owners.
Employer Obligations Under the Ordinance
Employers must navigate several key requirements under the Los Angeles Fair Chance Ordinance:
- Pre-Offer Requirements: Criminal history can only be reviewed after a conditional offer of employment.
- Post-Offer Assessment: If considering employment denial based on criminal history, employers must conduct an individualized assessment.
- Workplace Notices: Employers must display notices about the ordinance at the workplace and provide written notification to job applicants about how their criminal history might be used.
The FCO prohibits employers from making inquiries into criminal history prior to making a conditional job offer unless legally required. This approach ensures that all candidates are considered based on their qualifications, rather than their past indiscretions.
In addition, employers may never ask about, require the disclosure of, or base an adverse action on certain types of criminal history, including:
- An arrest that did not result in a conviction;
- Diversions or deferrals that have been completed and dismissed;
- Convictions that are sealed, dismissed, expunged, invalidated, pardoned, or eradicated pursuant to law;
- Juvenile arrests or detentions;
- Non-felony convictions for possession of marijuana that are 2 or more years old;
- Convictions that are more than 7 years old (exceptions apply for certain jobs, e.g., providing care to minors, dependent adults, or senior adults);
- Offenses other than a felony or misdemeanor (such as an infraction, some exceptions for specific roles); and
- Convictions arising out of conduct that has since been decriminalized.
It is also illegal for employers in the jurisdiction to have blanket policies on disqualifying employees with criminal histories or specific convictions.
Important to Note: The Orsus Group does not report records based on any of the case type categories above. These requirements align with our current standard reporting procedures.
Background Check Notice Requirement
Under the FCO, before conducting a criminal background check, employers must provide written notice to the applicant, including the following:
- That the conditional offer is contingent upon the review of the individual’s criminal history;
- What specific information will be obtained;
- A list of the material job requirements;
- And a statement that the employer has good cause to conduct a review of criminal history for the job position with supporting justification. This must be written specifically. For example, “Safety Concerns” would not be considered acceptable and employers must provide information such as:
- Employer faces a significant risk to its business operations or reputation unless the review is done;
- That the job creates a potential risk of safety, risk of harm or harassment to employer, contractors, vendors, associates, clients, customers or the general public (whichever is applicable)
The statement must be provided for anything that the Consumer Reporting Agency will search but also any searches the employer will perform such as Googling the consumer online, reviewing social media accounts, etc.
Post-Offer Assessments
Once a criminal background check has been completed, employers must make an individualized assessment of whether the applicant’s criminal history has a direct, adverse, and negative bearing on their ability to perform the duties of the job before taking any adverse action. They are responsible to provide a preliminary notice of adverse action that explains the applicant’s right to respond before the decision becomes final. If the applicant responds, the employer must make a second individualized assessment. Then, if the employer plans to move forward with an adverse action, it must send a final notice.
The fair chance law also limits the following time frames:
- Employers must give the applicant at least 5 business days from receipt of the Pre-Adverse Action notice to respond.
- Applicants are granted an additional 10 days to provide evidence of rehabilitation or mitigating circumstances in writing or orally.
There are many other details in this fair chance law. For more detail, please see the Los Angeles County Frequently Asked Questions.
Compliance and Impact
Navigating Compliance Challenges
Compliance is crucial, as failure to adhere can result in significant fines and legal challenges. For businesses, adapting to these regulations requires a thorough review of hiring processes and staff training programs. Partnering with specialists like The Orsus Group can help businesses stay informed and compliant with these evolving legal requirements.
Lastly, and important for employers to know, the FCO imposes administrative penalties ranging from $5,000 to $20,000 for violations of the ordinance, potential action against licenses, and potential civil liability. Details about these penalties are listed in updated FAQs recently posted by the County of Los Angeles Department of Economic Opportunity.
The Broader Impact on Los Angeles Workplaces
By fostering a more inclusive hiring process, the Fair Chance Ordinance not only aids in the rehabilitation of former convicts but also enhances the diversity and richness of Los Angeles' workforce. While ensuring safety and due diligence remain priorities, businesses can now access a broader pool of potential talent previously sidelined by their past.
Experience the Shift in Business with The Orsus Group
As Los Angeles ushers in this new era of fair employment practices, business owners need to understand and implement the required changes effectively. The Orsus Group stands ready to provide tailored solutions and expert guidance to navigate this transition smoothly. Begin your journey towards a compliant and inclusive hiring strategy today, and discover the positive impact of giving everyone a fair chance.