Hunton Retail Law Resource

On January 22, 2017, the City of Los Angeles will ‘ban the box’ when the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) (the “Initiative”) goes into effect, prohibiting private employers in Los Angeles “from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment” is made to the individual. In doing so, Los Angeles will become the fourth California city to ‘ban the box’ with greater protections than the state statute, and the second to do so with respect to private employers. If an employer makes a conditional offer of employment and then receives information about an applicant’s criminal history, the employer cannot take an adverse employment action against the applicant based on that history until (1) a written assessment has taken place and (2) a Fair Chance Process has occurred.

First, the employer must perform a written assessment connecting the applicant’s criminal history to particular aspects of the position sought that suggest a risk in hiring the applicant. In doing so, the employer must consult factors identified by the U.S. Equal Employment Opportunity Commission and certain state-level agencies.

Once the employer performs the written assessment, the employer must provide the employee with a written notification of the proposed adverse action and a copy of the written assessment, as well as any other information supporting the proposed adverse action. The employer then must hold the position for at least five business days after informing the applicant of the decision in order to allow the applicant to complete the Fair Chance Process, (i.e., the applicant’s chance “to provide information or documentation to an Employer regarding the accuracy of his/her Criminal History or Criminal History Report or that should be considered in the Employer’s assessment...such as evidence of rehabilitation or other mitigating factors”). If the applicant provides a response to the employer in accordance with the process, the employer must then consider that information and perform a reassessment of the proposed action in writing.

After performing a reassessment, if the employer still engages in an adverse action, the employer must tell the applicant of the decision and provide the applicant a copy of the reassessment. Records regarding employment applications and assessments performed pursuant to the Initiative must be retained for a period of three years from the receipt date of the initial application.

The Initiative also mandates certain notices and posts. Employers are now required to state in all job posts “that the Employer will consider for employment qualified Applicants with Criminal Histories” consistent with the Initiative’s requirements. In addition, employers must post a notice informing applicants of the Initiative’s provisions “in a conspicuous place” at all locations in the City visited by applicants under the employer’s control, and send a copy of that notice to any labor union or worker representative with which the employer has a collective bargaining agreement, other agreement or understanding applicable to employees in Los Angeles.

The Initiative prohibits retaliation against any employee who (1) complains to the City regarding whether or not the employer has complied or plans to comply with the Initiative, (2) opposes any provision required by the Initiative, (3) participates in any proceeding related to the Initiative and (4) seeks to enforce the employee’s own rights under the Initiative by any lawful means, or otherwise asserting rights under it.

The Initiative is applicable to private employers located or doing business in the City with 10 or more employees, including the owner. The Initiative does not apply to instances where:

• the law requires an employer to obtain an applicant’s criminal history;
• the job would require the applicant to possess or use a firearm in the course of the applicant’s performance;
• the requirements of the job prohibits someone convicted of a crime from holding it, “regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation”; or
• the employer is legally prohibited from hiring a person convicted of a crime.

Applicants or employees can seek enforcement of the Initiative by reporting the alleged violation to the DPW within one year of the alleged violation having occurred. The DPW will then investigate the complaint. In an administrative proceeding to enforce the Initiative, employers are required to provide the DPW, if asked, with access to records and documents related to the application at issue and any assessment it performed.

If the DPW determines a violation has occurred, it will “issue a written notice to the Employer of the violation, require the Employer to immediately cure the violation and may impose an administrative fine[.]” Fines for notice, posting and records retention violations can be up to $500 for each violation. Fines for other violations of the Initiative are capped at $500 for a first violation, $1,000 for a second violation and $2,000 for any further violations. Though the amounts may not be substantial, the Initiative provides that “[e]mployer violations may be treated as separate violations and subject to the penalty or administrative fine amounts set forth therein.” Fines will not be imposed until July 1, 2017. Prior to that time, the DPW will only issue written warnings.

The decision of a hearing officer will constitute the City’s final position, which can then only be reviewed by a petition for writ of mandate to the Superior Court. Applicants or employees can bring a civil action against an employer for violating the Initiative. However, such an action can only be brought after the applicant or employee has reported the alleged violation to the DPW and the administrative enforcement process has been completed or the hearing officer has rendered a decision. If brought, such an action must be made within one year of the later of the two.

Applicable Los Angeles employers should immediately review the Initiative with managers to ensure their recruitment and application processes, including any written materials used in those processes, comply with its terms.