Blog: The California Workplace Advisor

As we first discussed here, “ban the box” state laws and local ordinances are picking up traction nationwide.  Both California and Los Angeles (in 2013 and 2014 respectively) passed legislation regulating public entities’ ability to inquire about a job applicant’s prior criminal history.  Beginning January 1, 2017, Los Angeles will join the growing number of jurisdictions also regulating a private employer’s ability to make such an inquiry.

Who Is Covered?

The ordinance covers private employers that are located or do business in the City of Los Angeles and who employ 10 or more employees.  For the purposes of this ordinance, an employee is any person who performs at least two hours of work on average each week in the City of Los Angeles and who qualifies as an employee entitled to minimum wage under California’s minimum wage law.

Notably, the ordinance defines “employment” to include, but not to be limited to, temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, as well participation in a vocational or educational training program with or without pay.

The ordinance specifically exempts (1) employers who are required by law to obtain conviction information; (2) positions where the applicant would be required to use a firearm in the course of employment; (3) positions where a prior conviction would legally bar employment; and (4) employers who are prohibited by law from hiring an applicant convicted of a crime.

Requirements

Prohibited inquiries: Employers subject to the ordinance may notinclude on any job application any questions seeking the disclosure of an applicant’s criminal history.  An employer may also not at any time or by any means inquire or require the disclosure of an applicant’s criminal history unless and until a conditional offer of employment is made.

What if I make a conditional job offer and discover an applicant’s criminal history? If an applicant’s criminal history is revealed after the employer makes a conditional offer of an employment, the employer may not take any adverse action against the applicant unless the employer first performs a written assessment linking the applicant’s criminal history with risks inherent in the duties of the job sought.

• • At a minimum, the written assessment must consider 8 factors identified by the EEOC and any other factors as may be required by any rules or guidelines promulgated by the City’s Department of Public Works, Bureau of Contract Administration (Department), which will have responsibility for administering the Ordinance.
  • Additionally, prior to taking any adverse action the employer must provide the applicant with a “Fair Chance Process.” This process allows the applicant at least five business days to review a copy of the written assessment and provide information regarding the accuracy of the criminal record or any other information including but not limited to evidence of rehabilitation or other mitigating factors. The employer must consider this new information and provide a written reassessment. If after performing the reassessment, the employer still decides to take adverse action against the candidate, the employer must notify the candidate and provide the applicant with a copy of the reassessment.

No Retaliation: An employer may not take any adverse employment action against an employee for asserting his or her rights under this ordinance. Activity protected from retaliation is broad, including but not limited to complaining to the City regarding an employer’s compliance or anticipated compliance, opposing a practice proscribed by the ordinance, participating in proceedings related to the ordinance, seeking to enforce his or her rights or otherwise seeking to assert any rights under the ordinance.

Notice: An employer must: (1) affirmatively state on solicitations or advertisements seeking applicants for employment that the employer will consider applicants with criminal histories in a manner consistent with this law; and (2) post a notice in a conspicuous place at each worksite informing applicants of the provisions of this ordinance.

Record Keeping: An employer must retain all records related to an applicant’s employment applications for a period of three years.

Enforcement: An applicant may bring a civil action an employer and is may seek the penalties set forth in the ordinance as well as any other legal or equitable relief appropriate to remedy the violation. Before filing a private lawsuit against an employer the applicant must report the alleged violation to the City’s Department of Public Works, Bureau of Contract Administration, which must be filed within one year of the alleged violation, and a determination before a hearing officer has been reached, including conclusion of any hearing. Any civil action must be filed within one year of the completion of the Department’s enforcement process or the issuance of any decision by a hearing officer, whichever is later.

Penalties for violations of the notice and recordkeeping requirements are set at $500.  Violations of other provisions are set at $500, $1,000, and $2,000 for the first, second, and third-or-subsequent violation respectively. The Department will not impose any penalties or fines until July 1, 2017. Before that date, the Department will only issue written warnings.

Takeaways

Employers should review existing applications and policies to ensure that they are in compliance with the ordinance. Additionally, it will be critical to provide appropriate training for managers and supervisors responsible for hiring decisions. The training should cover both the scope of permissible inquiries as well as implementation of the “Fair Chance Process.” Employers may also wish to take the opportunity to review their pre-employment screening policies with respect to running background checks and credit checks as regulated by both federal and state law.

Benjamin J. Treger is an associate in the Santa Monica office of Hirschfeld Kraemer LLP. You can reach him at btreger@hkemploymentlaw.com, or (310) 255-1824.