The popular initiative to “Ban the Box” was approved by the Los Angeles City Council in November and will take effect January 1, 2017. The new ordinance applies to Los Angeles businesses that employ 10 or more employees as well as contractors doing business with the city. The law may affect as many as hundreds of thousands of employees, according to Councilman Curren Price.
Employers in Los Angeles subject to the Ban the Box Ordinance are subject to the following restrictions and requirements:
- No inquiry into an candidate’s criminal history, or conduct a criminal background check until after extending a conditional offer of employment that is exclusively conditioned to the result of the criminal check;
- A written assessment that effectively links the specific aspects of the candidate’s criminal history with risks inherent in the duties of the position sought in accordance with EEOC Enforcement Guidance must be conducted before taking adverse action based on the candidate’s criminal history;
- The candidate must be given a “Fair Chance Process,” document which outlines the process for the candidate to provide information regarding the accuracy of the criminal search, and any evidence of rehabilitation, or other information to mitigate or explain the results of the criminal search;
- The employer must wait at least five business days after providing the “Fair Chance Process” and informing the candidate of the potential adverse decision;
- If the candidate provides information pursuant to the “Fair Chance Process” the employer must consider that as part of its written assessment;
- If the employer makes a final adverse employment decision, in addition to the requirements set forth in the FCRA the employer must also provide the candidate with a copy of the written assessment of their criminal history.
Affected employers must also post a copy of Notice explaining the Ordinance in the workplace and state in all job requisitions that it will evaluate qualified candidates with criminal histories in a manner consistent with the Ordinance. All written assessments and documents acquired as part of the candidate’s criminal history evaluation must be retained for 3 years following the receipt of the candidate’s application.
Presently 24 states and more than 150 cities and counties nationwide have implemented Ban the Box laws with the objective of eliminating barriers for qualified workers with criminal records and enabling them to be judged on experience and aptitude for the position offered.
While the ordinance goes into effect on the first day of 2017, penalties and administrative fines will not be issued until July 1, 2017. This should provide the time affected employers and contractors to establish the required processes.
This communication is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in this communication. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.
When Can An Employer Ask About Criminal History?
White Paper: State Ban the Box Laws
This chart describes the question of “when” an employer may ask about criminal histories.