Los Angeles Enacts Ban-The-Box

On December 19, 2016, Los Angeles Mayor Eric Garcetti signed into law Assembly Bill 218, known as the Los Angeles Fair Chance Initiative for Hiring, which creates a new ordinance that will limit employers’ consideration of the criminal history of job applicants. The bill was sponsored by City Councilmember Curren D. Price, Jr. and adopted by the Council by a vote of 12-1 on November 30th. The ordinance becomes effective on January 22, 2017.

Under the new law, employers located in Los Angeles are prohibited from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant. This includes prohibiting questions on an initial employment application regarding criminal history as well as questions during an in-person interview, as well as conducting any sort of criminal history background check prior to the conditional offer. Employers also have posting requirements to inform applicants of the provisions of the ordinance.

Further, upon review of an applicant’s criminal history, the employer may not take any adverse action (such as a denial of employment) unless the employer completes and provides the applicant with a written assessment of the applicant’s criminal history “that effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought by the applicant.” The employer is also required to provide the applicant five days to submit information refuting the findings of the assessment, and must provide the applicant with written notice of the adverse action as well. Employers are also required to retain records of such adverse action assessments for a period of three years from the date of the initial application.

The ordinance does provide several exceptions to the prohibition of criminal history inquiries, namely if the employer is required by law to inquire about criminal history, if the position requires the applicant to carry a gun, of if other laws prohibit persons with criminal histories to hold the position in question.

Under the ordinance, employers are subject to administrative enforcement as well as civil action in court. Applicants or employees that believe an employer may be in violation of the ordinance may report the alleged violation within one year of the violation to the Department of Public Works, Bureau of Contract Administration (“The Department”), which shall investigate the complaint. The Department may also initiate an investigation of alleged violations. If an employer is found to be in violation of the ordinance the Department will issue a written notice requiring the employer to cure the violation and may impose administrative fines of up to $2,000 per violation. An applicant or employee may also bring a civil action in court for violation of the ordinance within one year of completion of the administrative enforcement process.

While the newly enacted law requires the Department to promulgate guidelines for the implementation of certain administrative enforcement provisions, the Department is authorized to issue warnings to employers immediately with penalties and fines being effective July 1, 2017. Accordingly, employers should begin to review and revise their hiring practices accordingly.

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