Next week, on Tuesday, September 3, to be exact, the Los Angeles County Fair Chance Ordinance takes effect — and its provisions are far stricter than those of California’s Fair Chance Act (FCA, also known as the “ban-the-box” law).
The state’s Fair Chance Act, enacted in 2018, generally prohibits employers with five or more employees from requesting or considering an applicant’s criminal history prior to making an offer of employment to the applicant. But Los Angeles County’s new Fair Chance Ordinance for Employers (FCOE) introduces more stringent rules around conducting employment-related criminal history checks within the county’s unincorporated areas (the city of Los Angeles’ Fair Chance Initiative for Hiring Ordinance applies to work performed within the city).
The FCOE not only expands on the existing FCA requirements, but also introduces additional obligations on employers with employees performing work in unincorporated areas of Los Angeles County — who must comply with both the FCOE and the state’s ban-the-box law. Here’s a look at the key differences (but not all differences) between the two.
‘Look-Back’ Period
The FCA generally allows employers to consider criminal convictions regardless of how old they are, with some exceptions (such as arrests or detentions not resulting in conviction, or juvenile criminal history information, to name a few).
The FCOE, however, limits the consideration of criminal history to the past seven years, except under specific circumstances.
Job Advertisements
Both laws prohibit statements that discourage applicants with criminal histories from applying (e.g., “no felons”). However, the FCOE goes a step further by requiring job advertisements to include a detailed list of all “material job duties” for the position that could be affected by an applicant’s criminal history. This list should identify duties that may have a “direct, adverse, and negative relationship” with the applicant’s criminal background, potentially leading to a job offer withdrawal.
Additionally, the FCOE mandates that job ads include a statement confirming that qualified candidates with criminal histories will be considered in compliance with both the FCOE and the state’s FCA. Employers legally required to exclude individuals with specific criminal records must also specify the relevant laws or regulations in their job advertisements.
Timing of Criminal History Review
The FCA allows employers to inquire about criminal history as soon as a conditional offer of employment is made.
The FCOE, however, is more strict: It prohibits employers from discussing an applicant’s criminal history until after the post-offer criminal history check is completed and the applicant has been provided a copy of the criminal history report.
Offer Letter Requirements
Unlike the FCA, which does not impose specific language requirements for offer letters, the FCOE mandates that offer letters:
- Include a statement indicating that the offer is contingent upon a review of the candidate’s criminal history;
- Include a written justification for why this review is necessary for the position, demonstrating “good cause” (and a generic statement citing “safety concerns” will not suffice); and
- Disclose any other background checks or screening requirements that will be conducted by the employer, such as drug testing, social media history, or education verification.
Written Assessments
Under the FCA, employers are required to conduct an individualized assessment before rescinding a job offer based on criminal history, but there is no obligation for this assessment to be in writing.
The FCOE, however, does mandate that the individualized assessment be documented in writing — and takes it another step further, requiring that the employer provide it to the applicant with the preliminary and final adverse action notices before making any decision to rescind the offer.
There also are differences between the two laws regarding waiting periods, and the methods for delivering preliminary and final adverse action notices.
Increased Penalties
The FCOE imposes stricter penalties for violations than does the FCA, with fines reaching up to $20,000 per applicant (the FCA’s maximum fine is $500. And on top of that, the Los Angeles County Department of Consumer and Business Affairs may impose further sanctions that can affect an employer’s business licenses.
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
CalChamber members can read more about the California Fair Chance Act and its exceptions, Los Angeles County’s more stringent Fair Chance Ordinance for Employers, and the city of Los Angeles’ Fair Chance Initiative for Hiring Ordinance) on HRCalifornia. Not a member? Learn how to power your business with a CalChamber membership.
