Los Angeles County recently adopted a new ordinance that imposes strict obligations for companies using criminal background checks in the hiring process. The ordinance applies to employers located or doing business in the unincorporated areas of California’s most populous county that employ five or more employees, including job placement, temporary, referral, and other employment agencies and nonprofit organizations.
The ordinance excludes from the definition of employer Los Angeles County, its departments, any other local governmental agency or unit, or any unit of the state government or the federal government. This new ordinance expands the fair chance in hiring ordinance that the City of Los Angeles enacted in 2016, which preceded the state-wide “ban the box” law in 2017.
What does this mean? Beginning on September 3, 2024, covered employers throughout the unincorporated areas of Los Angeles County will be prohibited from asking about a covered applicant’s or employee’s criminal history until after a conditional offer has been extended and after the results of the background check have been received. Additionally, with a few exceptions, the ordinance restricts the types of inquiries that can be made and prohibits asking about non-criminal infractions. Additionally, the law prohibits an employer from ending a job interview or rejecting an applicant or employee who did not disclose information about their criminal history or refused to answer the employer’s question about their criminal history.
Most notably, covered employers are required to provide applicants with a written statement before conducting a background check that the employer has good cause to conduct the background check for the specific job position the applicant or employee has applied for. The employer must provide “supporting justification” for conducting the background check, which can be demonstrated by any of the following:
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The employer faces a significant risk to its business operations or business reputation unless a review of criminal history is conducted for the specific job position.
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A review of criminal history is necessary for the specific job position due to articulable concerns regarding the safety of, or risk of harm or harassment to, the employer’s staff, employees, contractors, vendors, associates, clients, customers, or the general public. The law specifies that a general statement that the employer is performing a background check due to “safety concerns” without more supporting justification is not sufficient.
Among other things, the new ordinance includes broader definitions of applicant, employee, and employment. “Applicant” is defined as an individual who is seeking “employment” with a covered employer, including employees applying for a promotion. “Employee” is defined as anyone who works at least an average of two hours of work per week for a covered employer within the unincorporated areas of the county. The new definition of employment encompasses different work categories of employment, including part-time, contract, temporary, freelance, and remote work within the county’s unincorporated areas.
Employers’ job postings must include language stating that qualified applicants with arrest/conviction records will be considered for employment per the Fair Chance Ordinance and the California Fair Chance Act; and they are prohibited from including language that may deter applicants with criminal histories from applying, such as stating “no felons” or “must have clean background.”
The ordinance includes an exhaustive list of employer requirements regarding criminal background checks; a specific written preliminary notice of adverse action if the employer intends to rescind a job offer based on the criminal background results; a final written decision to rescind an offer; posting and recordkeeping; and employee/applicant remedies for violations of the ordinance.
Covered employers will need to prepare for these requirements as the preliminary notice requirements under the statewide Fair Chance Act are not sufficient to meet the employer’s obligations under the Los Angeles ordinance. Employers Council’s California Legal Services Team can assist you in navigating this new ordinance if you hire employees in Los Angeles County, as well as providing recommendations for compliance. Please contact our team at CAinfo@employerscouncil.org.