The Los Angeles Ban the Box law, formally referred to as the Fair Chance Initiative for Hiring Ordinance, prohibits private employers and city contractors hiring in the City of Los Angeles from including questions on employment applications seeking the disclosure of an applicant’s criminal history. Los Angeles Municipal Code § 189.02. Further, employers cannot investigate an applicant’s criminal history until after extending a conditional employment offer.
Covered Employer
Under the Los Angeles Ban the Box law, private employers and city contractors that have at least ten employees must comply with the law. Private employers include individuals, firms, corporations, partnerships, labor organizations, groups of persons, and associations, so long as they are doing business in Los Angeles. Referral, employment, and job placement agencies must comply with the Los Angeles Ban the Box law.
Criminal Background Checks Permissible Only After Employer Makes a Conditional Employment Offer
The Los Angeles Ban the Box law prohibits employers from inquiring into or demanding disclosure of criminal history until after extending a conditional employment offer. If an employer discovers criminal history, it may not refuse to hire, disqualify, or adversely affect employment opportunities from the applicant until after engaging in what the Los Angeles Ban the Box law refers to a Fair Chance Process.
Protected criminal history includes information indicating that a person has been convicted of a felony or misdemeanor causing probation, a fine, imprisonment, or parole. This information is often included in a criminal history report.
Los Angeles Ban the Box Law Fair Chance Process
Like most Ban the Box laws, Los Angeles’ Ban the Box law requires employers to perform an individualized assessment, which the law refers to as a Fair Chance Process. The employer cannot deny employment until after completing the mandatory written individualized assessment.
Performing the individualized assessment requires the employer to link the applicant’s criminal history with risks inherent in the duties of the position. The Los Angeles Ban the Box law adopts the individualized assessment factors promulgated by the EEOC, which include, but are not limited to:
- The facts or circumstances surrounding the offense or conduct;
- The number of convicted offenses;
- The time elapsed since the conviction or release from prison;
- Evidence of rehabilitation; and,
- Employment or character references.
Before denying employment, the employer must provide the applicant with written notice of the prospective denial due to criminal history, a copy of the written individualized assessment utilized to justify the employment denial, and any other documentation supporting the employer’s proposed denial, including the criminal background report used, if any.
Applicant has at least 5 Days to Respond
Under Los Angeles’ Ban the Box law, the employer must provide the applicant a chance to respond to the prospective employment denial. The employer must allow at least five days for a response to the prospective employment denial, which the applicant may provide orally or in writing. Not only must the employer consider any information or documentation offered by the applicant, but it must also draft a written reassessment of the proposed employment denial, taking into consideration the new information.
Employer Must Provide Final Written Notice of Employment Denial
After considering the applicant’s response and completing the written reassessment, the employer must notify the applicant of the financial decision.
If the employer denies employment, it must provide a copy of the written reassessment to the disqualified applicant.
Employers who fail to follow Los Angeles’ Ban the Box law cannot deny employment based on criminal history.
Los Angeles Ban the Box Record Retention
Employers must retain assessment records, application forms, and other relevant Ban the Box related data and records for at least three years following the receipt of the applicant’s application. The City of Los Angeles is empowered to access the records. Additionally, an applicant or employee can obtain them during litigation.
Los Angeles’ Ban the Box Regulates Job Postings
Under the Los Angeles Ban the Box law, employers must state in all job postings, solicitations, and advertisements that they consider all qualified applicants with criminal histories. Further, employers must post a notice informing applicants of their Los Angeles Ban the Box rights in a conspicuous place at every Los Angeles workplace or job site.
Retaliation Prohibited
The Los Angeles Ban the Box law contains an anti-retaliation provision. This means that employers cannot take any retaliatory action against applicants or employees for exercising their Ban the Box rights or reporting misconduct to the appropriate authority.
Exemptions
The Los Angeles Ban the Box law does not apply to positions requiring the use of a gun as part of employment, where the employer is required by law to perform a background check, where a person is prohibited from holding a particular position by law, and where the employer may not hire people with criminal records by law.
Employer Liability for Los Angeles Ban the Box Violations
The Los Angeles Ban the Box law contains a private right of action, which means individuals have the freedom to bring claims for Los Angeles Ban the Box violations in court. People who suffer Los Angeles Ban the Box violations, including employment denials and disqualifications, have claims for damages under Los Angeles’ Ban the Box law. Legal damages include a penalty of $500 for initial violations, $1,00 for the second violation, and $2,000 for the third and each subsequent violation. Additionally, a plaintiff can recover other legal and equitable relief to remedy the violation, including actual damages, back pay, and reinstatement.
Prior to filing in court, an applicant must file a complaint with the City of Los Angeles, and the City has completed an investigation or rendered a decision following a hearing.
Claims under Los Angeles’ Ban the Box law must be filed within one year of the date of the last violation.
If the employer unreasonably decides to disqualify the applicant from the position or terminate an employee due to criminal history, the applicant or employee should consider filing a complaint with the state or taking legal action. If your employer or prospective employer has denied your Los Angeles Ban the Box law rights, contact Astanehe Law immediately for your consultation. You have rights, and Astanehe Law may be able to assist you. Call us at (415) 226-7170 or email us at contact@astanehelaw.com. Astanehe Law Knows Employee Rights.
