Los Angeles County’s new fair chance hiring ordinance aims to ensure that individuals with arrest or conviction records are given fair consideration for employment by limiting how employers use criminal background checks. Starting September 3, 2024, the new ordinance’s various requirements surpass protections currently offered under federal and state laws.
Below is a non-exhaustive overview of some of the ordinance’s main provisions.
Who is Covered Under the Ordinance
Los Angeles County’s Fair Chance Ordinance applies to employers located or doing business in unincorporated areas of the Los Angeles County who employ five or more employees (regardless of location), including temporary or job placement agencies, referral agencies and non-profits.
Applicants seeking employment are covered, including current employees seeking promotions, who perform at least an average of two hours of work weekly within the unincorporated areas.
The new ordinance also broadly applies to various types of work, including remote and contracted work, physically occurring within the unincorporated areas of Los Angeles County.
Job Posting and Announcement Requirements
All job solicitations (e.g., advertisements, postings, announcements, bulletins, etc.) must contain language asserting that qualified applicants with conviction or arrest records will be considered in accordance with applicable laws. Employers must also state any legal hiring restrictions the employer is bound by.
Employers who base job offers on the outcome of a criminal background check are required to list the position’s “material job duties” that they “reasonably believe” could be negatively impacted by an applicant’s criminal history and thus might lead to the revocation of a conditional job offer.
Language that could deter applicants with criminal records is forbidden (e.g., saying “No felons”).
Conducting Background Checks
Employers cannot proceed with a background check until after extending a conditional job offer. However, even after making a conditional job offer, employers cannot inquire directly about a candidate’s criminal history. Such questions are permitted only after the employer has obtained the candidate’s criminal background check.
Additionally, employers must provide applicants with specific written notices before conducting a background check, including a detailed statement as to why the employer has “good cause” to conduct the background check.
Before rescinding a job offer, employers must perform a written, individualized assessment of an applicant’s criminal history that details the specific reason(s) for the employment denial. Employers cannot rescind a job offer due to delays in obtaining the criminal background report unless they can prove that keeping the position open would cause “undue hardship.”
Required Assessment Process and Notices
If an employer intends to rescind a job offer, it must provide the applicant with a preliminary notice of adverse action, containing specific information, including but not limited to:
- A copy of the employer’s written individualized assessment;
- A copy of the criminal background report;
- The reason for the decision to rescind the offer; and
- An explanation of the applicant’s right to respond.
If an applicant provides any information in response to the preliminary notice of adverse action, the employer must conduct a second written individualized assessment at that time, in consideration of the new information it received.
When making a final decision to rescind an offer, an employer must also provide the applicant with a final decision notice, including a copy of the second written assessment (if any), detailing the decision and providing information on how the employee may challenge it or request reconsideration.
Recordkeeping, Postings and Enforcement
Employers must post notice of the ordinance at all worksites and on webpages frequently visited by applicants or employees. The ordinance indicates that Los Angeles County will create and publish a form notice employers can use.
Employers must keep relevant records for at least four years following receipt of an applicant’s application. The ordinance also includes mechanisms for both public and private remedies.
Employers who conduct or intend to conduct background checks or inquiries on employees working within the unincorporated areas of Los Angeles County should take steps to understand and comply with the new ordinance.
Vanessa M. Greene, J.D., Employment Law Subject Matter Expert, CalChamber
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