Ban the Box: What Employers Should Know About LA County's Fair Chance Ordinance
On September 3, 2024, significant updates to Los Angeles (“LA”) County’s Fair Chance Ordinance will go into effect. These changes will affect many aspects of the hiring process, including changes to job postings, conditional offer letters, and the background check adjudication process. Read more to learn what employers should know about the amendment to Title 8 of Los Angeles County Code.
Who does this law apply to?
The Fair Chance Ordinance applies to employers with five or more employees. It covers workers who are performing at least two hours of work in unincorporated areas of LA County, which accounts for one million people (one-tenth of LA County's total population).
It's worth noting that the city of Los Angeles maintains a separate Fair Chance Initiative for Hiring Ordinance.
What are the biggest changes?
The biggest changes affecting employers are within the job application stage and adverse action process.
Inquiring about criminal history
Employers will be prohibited from asking candidates about their criminal history even after extending a (conditional) job offer. Employers may only ask about a candidate’s criminal history after you (and the candidate) have received a copy of the criminal background check report.
"Show your work" requirement
Similar to the city of Los Angeles, employers are now required to “show their work” with respect to the individualized assessment requirement and provide candidates with a copy of their individualized assessment in writing. This includes analysis of the Equal Employment Opportunity Commission’s factors, like the “nature-time-nature test,” as well as other factors including those in the California Fair Chance Act, such as the permanence of the harm caused by the offense or the age of the individual at the time they engaged in the conduct.
Adverse action notices by mail
Unlike anywhere else in California, LA County will now require employers to mail the initial and final notices (or pre- and post-adverse action notices), even if you have the candidate’s email address. All deadlines, such as the five-business day waiting period between pre- and post-adverse action, will be counted based on when the initial notice (pre-adverse action) was mailed, which will lengthen the adverse action process.
For example, if Doe Industries sends the initial notice on Monday, June 3, 2024, to Jane Doe, a California resident, by both mail and email, the five-business day waiting period before Doe Industries can send the final notice would not begin until Saturday, June 8, even if the candidate immediately received the email. Because it counts business days, the waiting period means that Doe Industries would not send the final notice until Monday, June 17.
How can Checkr help maintain compliance with these changes?
Checkr understands the impact this requirement can have on your operations. Our platform will support the expanded individualized assessment requirements and the ability for customers to send adverse action letters via postal mail.
Sending postal adverse action
Customers will have the ability to select a delivery method (postal or email) when initiating adverse action in the Checkr dashboard. This option will be available regardless of candidate location or work location to give customers maximum flexibility and control regarding how they choose to comply with this new law.
Select a delivery method when initiating adverse action in the Checkr dashboard
What else does LA County require?
Employers should ensure that all job postings include language stating that qualified applicants with arrest or conviction records will be considered for employment, and that any conditional offer includes a notice regarding the candidate’s criminal history review as part of the hiring process.
Employers must also provide a list of the “material job duties” that may directly and adversely intersect with a candidate's criminal history and could result in a withdrawal of the conditional job offer.
The LA County law follows California law in prohibiting employers from considering certain criminal information, such as arrests and certain marijuana-related convictions. It goes beyond state law by prohibiting inquiry into non-criminal infractions, with some exceptions for driving-related infractions where a position requires driving.
The new law also includes changes to the pre- and post-adverse action notices. These changes include:
Pre-adverse action notice:
Notifying the candidate if a delayed background check report is the reason for the adverse action
Informing the candidate of their right to respond with additional information
Post-adverse action notice:
Requiring an advisement of the candidate’s right to file a complaint with the Department of Consumer and Business Affairs (DCBA) for LA County and the California Civil Rights Department.
Providing the candidate with any information regarding existing internal (hiring entity) procedures challenging the decision or requesting reconsideration.
Checkr has developed templates to support these changes, which are available in the Checkr dashboard.
What should you do to prepare?
Review your policies and procedures with your legal counsel before September 3, 2024, to ensure alignment between your operations and the updated law, especially if you engage or hire workers in LA County.
Current Checkr customers can contact our support team to discuss how we can help support your compliance.
Disclaimer
The resources and information provided here are for educational and informational purposes only and do not constitute legal advice. Always consult your own counsel for up-to-date legal advice and guidance related to your practices, needs, and compliance with applicable laws.