Starting September 3, 2024, employers must comply with involved new requirements if they wish to consider criminal backgrounds in making hiring or promotional decisions for positions that will perform work in any unincorporated area of Los Angeles County.  The requirements — imposed by the County’s Fair Chance Ordinance — will be significantly more burdensome for employers than those under the statewide Fair Chance Act or the City of Los Angeles Fair Chance Ordinance.

Coverage

The new county ordinance covers all employers located or doing business in an unincorporated area of Los Angeles County and employing five or more employees, regardless of where the employees are located.  Covered employers include the full range of for-profit businesses, nonprofits, and temporary, placement, and referral agencies.

All external applicants for jobs, and internal applicants for promotions or other positions they do not currently hold, with a covered employer are entitled to the protections of the ordinance so long as the position they seek will involve performing, on average, two hours of work per week or more within an unincorporated area of Los Angeles County.  Such employees are covered by the ordinance regardless of whether they will work full or part-time, for a specific term, or on an indefinite, short-term, temporary, or seasonal basis.

The Scope of the Unincorporated Areas of Los Angeles County

Unincorporated areas or communities are those that do not have their own local government, such as a city council.  More than 65% of the county’s geographic area is unincorporated.  Unincorporated parts of the county include, for example, Agoura, Altadena, Baldwin Hills, East Los Angeles, East Pasadena, East San Gabriel, La Crescenta, Marina del Rey, Rancho Dominguez, Universal City, Valencia, and Walnut Park.

Job Posting Requirements

The ordinance makes it unlawful for employers to prevent or discourage individuals with a criminal history from applying for positions. 

Further, in job postings, solicitations, announcements, and advertisements employers must:  

– Include language affirmatively stating that qualified applicants with arrest or conviction records will be considered in accordance with the ordinance and the California Fair Chance Act; and,

– Not include statements that applicants with criminal histories should not apply, such as “No Felons” and “No Convictions.”

Identifying “Material Job Duties” and the Employer’s Individualized Assessment

Under the ordinance, whenever a covered employer intends to consider criminal history after making a conditional offer of employment, the employer must include in all job solicitations, bulletins, postings, announcements, and advertisements a list of “all material job duties” of the job position with respect to which the employer “reasonably believes” criminal history may have a “direct, adverse and negative relationship” potentially resulting in the withdrawal of the conditional offer of employment.”  

As a consequence of this requirement, the employer must determine – before they post a position as available or begin a search – whether they want to be able to consider applicants’ criminal history in making the hiring or promotional decision.  If so, the employer must perform the analysis necessary to identify the “material job duties” for purposes of the ordinance and include them in job postings, etc.   

If, after making a conditional offer of employment, the employer reviews the applicant’s criminal history and intends to withdraw the offer “solely or in part” because of the applicant’s criminal history, the ordinance requires the employer to first conduct an “Initial Individualized Assessment” of whether the person’s criminal history has a “direct, adverse and negative” bearing on the applicant’s ability to perform the duties or responsibilities of the position, such that denying the person the position is justified.  The Assessment must be documented in writing.  The ordinance sets out the factors to be considered in the Assessment.

The Employee’s Right to Respond

The ordinance requires, further, that before the employer may lawfully withdraw a conditional offer of employment on grounds of the person’s criminal history, the employer must give the applicant written notice of its intention to do so and the notice must include:

– a copy of the employer’s Initial Individualized Assessment;

– a copy of any background report considered;

– notice of the disqualifying conviction(s); and,

– an explanation of the applicant’s right to respond to the employer’s intention to withdraw the offer before the offer is withdrawn.

After giving the candidate this notice, the employer must give the applicant at least five business days to reply by (a) denying the accuracy of the criminal history information relied on by the employer; (b) providing evidence of rehabilitation or mitigating circumstances; or (c) requesting more time to gather evidence of rehabilitation or mitigating circumstances. 

The ordinance makes it unlawful for an employer to withdraw an offer either before expiration of the five days or, if the applicant replies as allowed and on time, to withdraw the offer without first taking the additional steps summarized below.

Second Individualized Assessment

If the employee responds to the employer on time and by one of the permitted responses, the employer “shall consider all information and documents, whether written or oral, timely submitted” by the employee and perform a Second Individualized Assessment documented in writing.

If, after conducting the second assessment, the employer’s final decision is to withdraw the conditional offer, the employer must give the employee written notice of that decision.  The notice must include:

– a copy of the employer’s Second Individualized Assessment;

– notice of the qualifying conviction(s) that are the basis for the final decision; and,

– robust notice of the candidate’s right to file complaints with the California Civil Rights Department (formerly known as the California Department of Fair Employment and Housing) for violation of the state Fair Chance Act and the Los Angeles County Department of Consumer & Business Affairs (“DCBA”) for violation of the ordinance.

Enforcement

The ordinance authorizes individuals to sue employers for alleged violations.  When they prevail, individuals may be awarded reinstatement, back pay, other damages, penalties set by the ordinance, and attorney’s fees and costs. 

In addition, the DCBA is authorized to receive complaints of violations, investigate, issue subpoenas to gather evidence, order employers to cure violations, impose penalties on employers of $5,000 to $20,000 per violation, and award other remedies.

Closing

This post is not a comprehensive description of the requirements set out in the new Los Angeles County Fair Chance Ordinance.  The ordinance includes other significant obligations, deadlines, and details with which employers must become familiar, including, for example, posting requirements, a document retention requirement, a provision making retaliation unlawful, and more.  Covered employers who do business in, or may draw applicants from, unincorporated areas of Los Angeles County must carefully prepare before proceeding with searches, internal promotions or similar personnel actions.

Resources

– The Los Angeles County Fair Chance Ordinance may be found HERE. 

– Frequently Asked Questions posted by the county may be found HERE.  

– A list of unincorporated areas of Los Angeles County may be found HERE.

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