Los Angeles’ “Ban the Box” Ordinance Signed Into Law

By December 21, 2016HR

On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the “Los Angeles Fair Chance Initiative for Hiring,” the “Ban the Box” ordinance that bars certain City of Los Angeles employers from asking job applicants about their criminal history.  Ban the Box goes into effect January 1, 2017, and Los Angeles becomes the fifteenth locality in the nation to adopt it.

This ordinance applies to all city contractors and private employers with ten or more employees who perform at least two hours of work on average each week within the geographical boundaries of the City of Los Angeles.  Some exceptions apply for fields such as child care and law enforcement.

In effect, employers may not have a “box” on job applications to seek information about a prospective employee’s criminal history.  However, once a conditional offer of employment has been made, the employer may assess an applicant’s criminal history.  Employers performing a written assessment shall, at a minimum, consider the factors promulgated by the United States Equal Employment Opportunity Commission (“EEOC”) as well as any other factors set forth by the rules or guidelines of the Department of Public Works, Bureau of Contract Administration (“DAA”) to evaluate and determine linking specific aspects of the applicant’s criminal history with the inherent risks in hiring the applicant.

If, following an assessment, an employer does not hire the employee, the employer may not fill the position for a period of at least five business days after the applicant is informed of the proposed adverse action.  During this period, the applicant may choose to engage in the Fair Chance Process whereby he or she may present any information for the employer’s consideration and the employer will complete a written re-assessment of the proposed adverse action against the applicant.  Following the re-assessment, if the employer sticks to its guns, then the employer shall notify the applicant of its decision and provide a copy of the written re-assessment.

Penalties and administrative fines for violations of this ordinance will be enforced by the DAA.  On July 1, 2017, monetary penalties of $500 for the first violation, up to $1,000 for a second violation, and up to $2,000 for third and subsequent violations will be in effect.  Prior to July 1, 2017, the DAA will issue written warnings to employers that will later be used to prove that employers were on notice of the new ordinance.

In addition, Ban the Box requires posting, notification, and record retention requirements.  And, employers now must state in all hiring advertisements that the employer will consider qualified applicants with criminal histories consistent with the ordinance.  Furthermore, employers are required to post a notice in a conspicuous place at every workplace, job site, or other location in the City of Los Angeles under the employer’s control and visited by job applicants.  The employer is also required to send a copy of the notice to each labor union with which the employer has a collective bargaining agreement.  Finally, employers are required to retain job applications, assessments, and any re-assessments for three years.  Violations of the positing, notification, and record retention requirements will result in fines up to $500 for each violation.