McLeod Witham

Hiring In Los Angeles? Beware the City's New "Ban the Box" Ordinance.

Synopsis: 

The City of Los Angeles has imposed new limitations on employers’ consideration of applicants’ criminal history.

Though it has become commonplace for employers to include a box for applicants to check on an employment application to indicate prior criminal convictions, employers who do business within the City must now revise their applications to eliminate such inquiries.  The City of Los Angeles is following the lead set by San Francisco to restrict employers’ consideration of an employment candidate’s criminal history.

The City of Los Angeles passed its Fair Chance Initiative for Hiring (Ban the Box) effective January 22, 2017, which limits private employers within the City who employ ten or more employees from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment has been made to that individual.  Once a conditional offer has been extended, the employer is permitted to inquire into the candidate’s criminal history.  If the candidate does have a criminal conviction in his or her background that displeases the employer, the company is nevertheless not allowed to simply retract the offer of employment.  Rather, the employer is required by the new ordinance to take the extraordinary step of producing a written assessment that links the specifics of the candidate’s criminal history with risk inherent in the position sought by the candidate.

But the “fair chance” doesn’t end there.  The employer is required to provide a copy of the written assessment to the candidate with any supporting documentation and then wait up to five days before withdrawing the offer of employment.  During that five-day timeframe, the candidate is allowed to complete the “Fair Chances Process” by providing the employer with additional information or documentation, presumably regarding his or her rehabilitation or the accuracy of his or her criminal background, though the law is not completely clear.  If the candidate presents any such information, the employer is then obligated to do a written re-assessment of the candidate’s criminal history and the sought-after job position, and to provide a copy of it to the candidate if the job offer is ultimately retracted.

While the City has placed a burden – and frankly a litigation risk – on employers in requiring them to produce the written assessments and re-assessments, it has also failed to provide clear guidance on exactly what employers need to include in such a write-up in order to fully comply with this new ordinance.  The ordinance vaguely states that any written assessment should “at a minimum” consider the EEOC’s factors on this issue as well as any factors to be announced by the City’s “Designated Administrative Agency,” but does not provide much in the way of specifics.  Employers will therefore have to try to comply with the new ordinance without the benefit of knowing exactly what will ultimately be deemed acceptable by the City.

Of course, wasting no time, the new law provides employees with the right to bring a civil action to collect penalties for violations of these as-yet undefined requirements.  Stay tuned for further developments on this topic.

The ordinance can be viewed here.