Los Angeles County Fair Chance Ordinance – Summary of New Requirements | Faegre Drinker Biddle & Reath LLP

Beginning September 3, 2024, employers in unincorporated areas of Los Angeles County will be required to comply with the Los Angeles County Fair Chance Ordinance (FCO), which imposes restrictions on criminal background checks beyond those required by California's Fair Chance Act.

Background – the Fair Chance Act

The Fair Chance Act (also known as the “Ban the Box” law) prohibits employers with five or more employees from asking questions about an applicant's criminal history on job application forms. Covered employers may not inquire about or consider an applicant's criminal history until the applicant has received a conditional offer of employment. If an employer conducts a lawful background check and decides to withdraw an offer based on an applicant's criminal history, the employer must (1) conduct an individualized assessment of whether the applicant's criminal history is related to the specific duties of the job; (2) notify the applicant in writing of the tentative decision; (3) give the applicant at least five business days to respond before a final decision is made; and (4) give the applicant an additional five business days to contest the accuracy of his or her criminal history and seek evidence to support that claim. The Fair Chance Act also prohibits employers from considering certain convictions, including those that have been sealed, expunged, or expunged, and generally does not allow employers to consider arrests that did not result in convictions (subject to certain exceptions). Additional information on the Fair Chance Act published by the California Civil Rights Department can be found online.

The FCO

Now, employers operating in unincorporated parts of Los Angeles County (including employees working from outside of the county's unincorporated areas) must also comply with the FCO. A comprehensive list of unincorporated areas of Los Angeles County can be found on the county's website. The FCO goes beyond the Fair Chance Act in several ways, including:

• Employers are prohibited from discouraging or deterring applicants or employees with criminal records from applying for or responding to job postings, bulletins, postings, announcements and advertisements (collectively, “Job Postings”).
• Employers must include a statement in all job advertisements that qualified applicants with criminal records or arrests will be considered for employment under the FCO and the Fair Chance Act.
• Employers who wish to conduct criminal background checks must list in all job postings the essential duties of the specific position that the employer believes may be directly, adversely and negatively related to the applicant's criminal history.
• Require employers to include information about all other applicable federal, state or local laws in all job postings.
• Employers are prohibited from including statements in job advertisements indicating that applicants with a criminal past will not be considered (for example, “no serious criminals” or “no previous convictions”).
• Employers are prohibited from specifying in job advertisements that an applicant must have a clean record or pass a background check.
• Employers are prohibited from inquiring about a person's criminal history prior to a legal background check or from giving that person the opportunity to voluntarily disclose it.
• Employers are prohibited from terminating an interview or rejecting an application because of a criminal history that the applicant or employee discloses prematurely or learns from other sources, or because the applicant or employee has failed to provide information about his or her criminal history.
• Employers are prohibited from requesting or demanding information from an applicant/employee regarding his or her criminal history before the employer receives the criminal record report.
• Require employers to provide applicants with a copy of their criminal history certificate before discussing criminal history information or requesting additional information from the applicant/employee.
• Requiring an employer to provide an applicant or employee with written notice containing specific information about a criminal background check, such as in a conditional offer letter, which must include (i) a statement that the conditional offer is contingent on the individual's criminal history being checked; (ii) a statement that the employer has “good cause” to conduct a criminal background check for the specific position, with a written justification. A general statement that the employer is conducting a criminal background check for “safety concerns” without further justification is not sufficient to meet this requirement; and (iii) if the employer is verifying additional information, a complete list of all types of information, background, or history that will be verified by the employer, including but not limited to: education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, driver's license or certificate check, drug testing, or medical examinations.
• An employer may demonstrate good cause if it can demonstrate one of the following: (i) the employer faces a significant risk to its business or reputation if a criminal background check is not conducted for the particular job, or (ii) a criminal background check is necessary for the particular job because of reasonable concerns about the safety of the employer's workforce, employees, contractors, suppliers, partners, clients, customers or the public, or the risk of harm or harassment to such persons.
• Requires that certain enumerated factors be considered in an individual assessment before an employer takes adverse action against an applicant/employee based on a criminal background check.
• Requiring an employer who intends to withdraw an offer of employment following an individual written evaluation to provide the applicant with certain information, including a notice of the applicant's right to file a complaint with the Los Angeles County Department of Consumer and Business Affairs (DCBA) and the California Civil Rights Department.
• If the applicant/employee has obtained a license, certificate, permit or similar certification from a licensing, regulatory or other governmental agency or body required for the position sought, the applicant/employee's criminal history will be presumed not to be directly, adversely and negatively related to the specific duties of the position. However, the presumption is rebuttable and the employer must provide an explanation in the initial individual written evaluation.
• Prescribing certain notification, publication and recording obligations.
• Creating a rebuttable presumption that an adverse action taken within 90 days of an employee exercising their rights under the FCO is unlawful retaliation.

The FCO gives the DCBA the authority to enforce the FCO. An employer who violates the FCO may be liable for $5,000 per applicant/employee for a first violation, $10,000 per applicant/employee for a second violation, and $20,000 per applicant/employee for a third or subsequent violation. Employees may also file a private lawsuit within one year of filing a notice of intent to sue with the DCBA or the conclusion of an administrative proceeding by the DCBA.

Los Angeles County has published some useful FAQs online.

Diploma

The FCO covers employers with five or more employees at each location who are “located in or conduct business in the unincorporated areas of Los Angeles County.” Covered employers and those employers with even one employee who works in the unincorporated areas of Los Angeles County should follow the FCO's guidance.