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In February 2024, the Los Angeles County Board of Supervisors adopted the “Fair Chance Ordinance for Employers” to give additional rights, protections, and enforcement powers to job applicants with a criminal history in unincorporated LA County. Los Angeles County employers with five or more employees in unincorporated areas of LA County will now need to be aware of additional requirements under the County’s new Fair Chance Ordinance for Employers.
“Our local economy and communities’ benefit from more residents having equitable access to opportunity – this must include our fellow residents who have served their time and are ready to work. I am proud that the Board’s vote brings Los Angeles County closer to adopting a fair chance ordinance. Once officially in effect, this ordinance will help ensure the County is leading by example as the largest employer in the region and will strengthen protections and create tools for stronger enforcement of fair chance hiring practices in our unincorporated communities,” LA County Supervisor Holly J. Mitchell remarked in a press release.
The ordinance will go into effect on September 3, 2024.
Background
The 40-page ordinance explains that since the passage of the Fair Chance Act, California state and local jurisdictions have identified issues with its implementation and have tried to bolster its enforcement.
Ensuring those with criminal records have fair and equitable access to opportunities for gainful employment “is critical to making communities safer and achieving rehabilitative outcomes,” the Ordinance says. As such, a county ordinance with additional protections and enforcement mechanisms is a key step towards ensuring meaningful implementation of Fair Chance policies in the County and removing barriers to employment that undermine the County's efforts to realize the Care First vision.
What is the Fair Chance Act?
The Fair Chance Act stipulates that employers in California (with five or more employees) cannot ask about an applicant's criminal record before making a job offer. The “Ban the Box” law, enacted six years ago, is designed to decrease undue barriers to employment for individuals with criminal histories.
The law generally prohibits employers from:
Including on a job application any questions about conviction history before a conditional job offer has been made;
Asking about or considering an individual’s criminal history before a conditional job offer has been made; or
Considering information about arrests not followed by conviction, participation in pretrial or posttrial diversion programs that have been completed and the underlying pending charges or conviction dismissed, sealed, or eradicated, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
Public and private employers with five or more employees are covered by the law.
Who is Covered by LA County’s New Ordinance?
The county ordinance protects “applicants,” which is defined as an individual who’s seeking “employment” with an “employer.” In addition, employees seeking promotions are covered. The term “employee” is defined as any person whose position involves performing at least two hours of work on average each week within the unincorporated areas of the County.
The ordinance applies to any “employer” located or doing business in the unincorporated areas of Los Angeles County and employs five or more employees, no matter its location. The ordinance defines “employer” to include the following:
Temporary agencies;
Job placement companies;
Referral agencies;
Other employment agencies; and
Non-profits.
Plus, the term includes any entity that evaluates an applicant’s or employee’s criminal history on behalf of an employer or acts as an employer’s agent (either directly or indirectly) in evaluating an applicant’s or employee’s criminal history.
Significantly, the term “employment” is defined broadly and includes contract work. “Employment” means:
any occupation, vocation, job, or work, including but not limited to temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, including non-profit organizations, or any form of vocational or educational training with or without pay. Employment also means work or services provided pursuant to a contract for an Employer in furtherance of an Employer's business enterprise, such as in the case of independent contractors or freelancers. The physical location of the Employment must be within the unincorporated areas of Los Angeles County, including when a person is working remotely, teleworking or telecommuting from a location within the unincorporated areas of the County.
Are There Any Exceptions to the Ordinance?
Employers can ask about an individual’s criminal history if it’s required by law. They can consider criminal history if any law prohibits employing a person with a specific criminal history. Jobs that require the possession or use of a firearm permit the consideration of criminal history. The exceptions apply to positions as farm labor contractors.
Employers can seek to hire individuals with criminal histories for positions related to government programs or candidates with “lived experience” in incarceration or the criminal justice system.
How is the Ordinance Different from the Fair Chance Act?
Unless otherwise legally required, the Ordinance is more strict than the Fair Chance Act as it prohibits pre-conditional offer questions concerning criminal history, apparently, subjective subtle attempts to encourage disclosure of criminal history, and the premature end of an interview when a conviction is disclosed.
What are the Penalties for Violations?
Retaliation is prohibited, and it’s unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under the Ordinance. It’s also unlawful for an employer to refuse to hire an applicant, or to fire, demote, suspend, or otherwise take adverse action against an employee in retaliation for exercising rights protected under the Ordinance.
The ordinance provides the County’s Department of Consumer and Business Affairs with the power to investigate and issue penalties of $5,000, $10,000, and $20,000 for each progressive violation.
In addition, private civil litigation is expressly authorized.
Takeaway
Employers with operations in, or concerning Los Angeles County should assess necessary and potential changes in the way in which they ask about criminal history in the hiring process.
Specifically, they should review and update job application documentation, workplace postings, and company websites for impermissible inquiries concerning criminal records; and communications concerning the hiring process, such as templates for conditional job offers, as well as pre-adverse action and adverse action notices. Training for recruiters, managers, and HR personnel should also be evaluated.