As employers increasingly require job applicants to answer a question about prior arrests or convictions, legal scholars and sociologists have analyzed the societal impact of employers screening out applicants who have criminal records.  Moreover, information about an applicant’s background is becoming much easier and cheaper for employers to access online.  Scholars believe that the automatic exclusion of persons with a criminal record from consideration prevents otherwise qualified applicants from obtaining employment, increases the risks of recidivism of persons excluded from consideration, and disparately impacts persons of certain races and national origins. 

To deal with this problem, a grassroots group created the “Ban the Box” movement.  While specific legislation around the country varies, the movement is premised on the belief that questions concerning criminal background should be excluded from initial job applications.  The movement has picked up steam and over 90 cities and municipalities and 20 states have enacted some form of “Ban the Box” legislation.  In 2013, the State of California amended the Labor Code to prevent state and local governments from seeking disclosure of conviction history from employment applicants until the agency has determined the applicant meets the minimum employment requirements.  Cal. Lab. Code § 432.9.  President Obama endorsed ban the box by directing federal agencies to delay inquiries into job applicants’ records until later in the hiring process. 

The “Ban the Box” movement has focused primarily on state and federal government and agencies and, in some instances, government contractors.  However, many states and municipalities have joined in the trend and extended the exclusion to private employers.  See Rodriguez and Avery, Ban the Box Guide (containing a discussion of the background of the movement and a listing of laws and ordinances around the country).

On December 9, 2016, City of Los Angeles Mayor Eric Garcetti signed a new city ordinance called the Los Angeles Fair Chance Initiative for Hiring (Ban the Box).  This new ordinance becomes effective on January 22, 2017.  With this ordinance, Los Angeles joins a national trend in cities such as Austin, Baltimore, New York City and San Francisco in forcing private employers within the city to remove questions regarding criminal convictions from job applications.  While employers may still conduct a post-offer criminal background check, prior to excluding a potential employee from consideration due to a past criminal conviction, the employer must consider the relationship between the conviction and the duties of the position.  This is a broad municipal ordinance that will apply to anyone in the City of Los Angeles having ten or more employees.

The ordinance states that an employer shall not have a question on a job application seeking disclosure of an applicant’s criminal history and shall not otherwise require the disclosure of criminal history until after a conditional job offer is made.  Upon making a conditional job offer, an employer can then ask an applicant about his or her criminal history but can only act based on the answer if the employer first implements the United States Equal Employment Opportunity Commission’s (“EEOC”) test for determining the relevance of the conviction.  The ordinance identifies potential penalties of up to $2,000 depending the number of violations.  The ordinance has posting and record retention requirements and the penalties for violations of those provisions is up to $500 for each violation.

The ordinance applies broadly to businesses in the city that employ at least 10 people, with certain exceptions. Employers may not ask about an applicant’s record until a conditional offer of employment has been extended. After learning of an applicant’s record, employers must consider factors including (i) age of the offense, (ii) nature of the offense, and (iii) specific duties of the job sought. Written notice must be provided to applicants. The ordinance provides for a private right of action for aggrieved job applicants. The Los Angeles Department of Public Works, Bureau of Contract Administration is the designated administrative agency (“DAA”) tasked with enforcing the ordinance, keeping statistics, and collecting civil monetary penalties (which become effective on July 1, 2017; prior to that time, the DAA will only issue warnings.).

Coverage

The ordinance broadly defines “employer” to mean “any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City, and that employs ten or more Employees, including the owner or owners and management and supervisorial employees.”  Similarly, the ordinance defines an “employee” to mean an individual who performs “at least two hours of work on average each week within the geographic boundaries of the City” and “[q]ualifies as an employee entitled to payment of minimum wage” under California’s minimum wage law.

Unlawful Practices

The ordinance clearly defines what is no longer allowed:

• An employer shall not include on any employment application a question that seeks disclosure of the applicant’s criminal history – which means information regarding one or more convictions, transmitted orally or in writing, from any source;
• An employer shall not inquire about, or require disclosure of, a candidate’s criminal history unless and until an offer conditioned only on an assessment of the candidate’s criminal history has been made to the candidate.  This broadly includes asking the candidate to self-disclose their criminal history during an interview, searching the internet for information about the candidate’s criminal record, or seeking a report from the California Department of Justice, the Federal Bureau of Investigation, other law enforcement or police agencies, or courts, or by any consumer reporting agency or business or employment screening agency or business.

Assessing An Applicant’s Criminal History

After a conditional offer is made, an employer may review an applicant’s criminal history.  However, an employer “shall not take” an adverse action against an applicant based on the criminal history without first performing a written assessment that “effectively links the specific aspects of the Applicant’s Criminal History with the risks inherent in the duties performed” in the position sought by the applicant.  Employers shall, at a minimum, consider the factors identified by the EEOC and any other factors that the DAA promulgates in the future.

The EEOC’s individualized review factors can be found in its April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.  The EEOC’s guidance enumerates the following specific factors for an employer to consider, which per the Initiative, Los Angeles employers are now required to consider when analyzing a criminal conviction:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Age at the time of conviction or release from prison;
• Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct;
• Rehabilitation efforts, e.g., education and training;
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.

Enf. Guidance No. 915.002 (Apr. 25, 2012).

Prior to making an adverse decision against an applicant, an employer is required to provide that person with a “Fair Chance Process,” which means “an opportunity for an applicant to provide information or documentation to the Employer regarding the accuracy of his/her Criminal History or Criminal History Report that should be considered in the Employer’s assessment . . . such as evidence of rehabilitation or other mitigating factors.”  As part of this process, the employer must provide to the candidate written notification of the proposed adverse action, a copy of the performed written assessment, and any other information supporting the employer’s proposed adverse action.

The employer may not take adverse action or fill the employment position for at least five business days after the candidate has received this notification.  If the candidate provides the employer with additional information or documentation, the employer must consider the new information and perform a written reassessment.  If after performing the reassessment, the employer nevertheless decides to take adverse action against the candidate, the employer must notify the candidate and provide him or her with a copy of the reassessment.

The ordinance also prohibits retaliation against any employee who complains to the City about his employer’s compliance with the ordinance.

Notice and Posting Requirements

The ordinance imposes two separate notice requirements:

• All solicitations and advertisements for Los Angeles jobs or other types of work must state that the employer will consider qualified candidates with criminal histories in a manner consistent with the new law; and

• All employers must post a notice that informs candidates of the new law, which must be posted in a conspicuous place at every workplace or job site in Los Angeles that is under the employer’s control and is visited by applicants.  Copies of the notice must be sent to each labor union or representative of workers that has a collective bargaining agreement or other agreement applicable to employees in Los Angeles.

The ordinance requires employers to all retain records and documents related to an applicant’s employment and the written assessment and reassessment performed for a period of three years after the receipt of the employment application.  Upon request, an employer shall provide the records and documents to the DAA during an administrative enforcement proceeding.

Exceptions

The ordinance expressly does not apply in the following circumstances:

1. Law requires the employer to obtain information regarding a conviction an applicant;
2. The Applicant would be required to possess or use a firearm during his or her employment;
3. An individual who has been convicted of a crime is prohibited by law from holding the position sought – regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation; or
4. An employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Enforcement

The new ordinance provides an individual a private right of action against a covered employer and the ability to obtain the penalties set forth in the Initiative as well as any other legal or equitable relief appropriate to remedy the violation.  An aggrieved individual may not file a private lawsuit against an employer unless and until he or she has first reported the alleged violation to the DAA, 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.  If an aggrieved individual elects to proceed with litigation against the employer, he or she must file a civil action within one year of the completion of the DAA’s enforcement process or the issuance of any decision by a hearing officer, whichever is later.

Penalties and administrative fines range from $500 to $2,000, depending on the provision alleged to have been violated and the number of violations.  The DAA will not impose any penalties or administrative fines until July 1, 2017.  Before that date, the DAA will only issue written warnings.

Recommendations

For employers in the City of Los Angeles, we recommend that you remove from job applications any questions concerning an applicant’s criminal history.  Moreover, employers need to consider the needs of each job and whether it is necessary to conduct a criminal background check after the making of a conditional offer.  Employers should also set up a procedure for complying with the ordinance’s requirements for an individual assessment of criminal history and the Fair Chance Process.  Employers then need to ensure that their employees are trained and fully understand these new procedures.

If you have questions about this or any other employment-related matter, please call John Rubiner at 310/441-0500.  Mr. Rubiner is chair of Gerard Fox Law’s Labor and Employment Group.