County of LA to Restrict Employers’ Use of Criminal Records

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Special Announcement to all County of Los Angeles employers:

Effective September 03, 2024, the County of Los Angeles, CA will impose an ordinance that restricts employers in the city from asking about and using criminal record information.

Under the ordinance (#2024-0012), the following restrictions, among others, will apply:

1) An employer shall not include on any application any question that seeks the disclosure of an applicant’s criminal history:

a. In all job solicitations, bulletins, postings, announcements and advertisements, an Employer will include language stating that qualified Applicants with arrest or Conviction records will be considered for Employment in accordance with the Los Angeles County Fair Chance Ordinance for Employers and the California Fair Chance Act.

b. Employers will not include statements in job solicitations, bulletins, postings, announcements, and advertisements that no persons with Criminal History will be considered for hire or should not apply to the Employment position and will not include phrases such as “No Felons,” or “No Convictions.” An Employer may include language such as or similar to: “Background Check Required,” but is prohibited from including phrases such as “Must Have Clean Background” or “Must Pass Background Check.”

c. If the Employer intends to conduct a review of an Applicant’s or Employee’s Criminal History in connection with a Conditional Offer of Employment, the Employer must include in any job solicitations, bulletins, postings, announcements, or advertisements, a list of all material job duties of the specific job position which the Employer reasonably believes that Criminal History may have a direct, adverse and negative relationship potentially resulting in the withdrawal of the Conditional Offer of Employment.

2) An employer shall not inquire about, consider, disseminate, distribute, require disclosure or conduct a criminal history inquiry until after such employer has extended a conditional offer of employment to the applicant.

3) In connection with a Conditional Offer of Employment, if the Employer intends to conduct a review of an Applicant’s or Employee’s Criminal History information, the Employer must provide notice in writing to the Applicant or Employee that includes the following:

a. A statement that the Conditional Offer of Employment is contingent upon the review of the individual’s Criminal History.

b. A statement that the Employer has good cause to conduct a review of Criminal History for the specific job position with supporting justification provided in writing. A general statement that the Employer is performing a review of Criminal History due to “safety concerns” without more supporting justification is not sufficient to meet this requirement. An Employer establishes good cause if it can demonstrate any of the following:

1. 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; or

2. 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.

c. If the Employer is reviewing additional information, background or history in addition to Criminal History as part of the Applicant or Employee’s background check process in connection with a Conditional Offer of Employment, a complete list of all types of information, background or history that will be reviewed by the Employer, including but not limited to: education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, or medical examinations.

4) Following a Conditional Offer of Employment, if the Employer will be obtaining a Criminal Background Check Report regarding the Applicant or Employee, the Employer may not ask or request that the Applicant or Employee provide information either orally or in writing regarding the Applicant or Employee’s Criminal History, Unresolved Arrests or prior Convictions, including by requesting that the Applicant or Employee fill out a Criminal History Questionnaire or similar form, prior to the Employer’s receipt of the Criminal Background Check Report. An Employer must provide a copy of the Criminal Background Check Report to the Applicant or Employee before an Employer discusses any Criminal History information with the Applicant or Employee or requests further Criminal History information from the Applicant or Employee.

5) An Employer shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received, base an Adverse Action in whole or in part on the following types of Criminal History:

a. An arrest not followed by Conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of section 432.7 of the California Labor Code. This paragraph does not prohibit an inquiry into an Unresolved Arrest.

b. Referral to or participation in a pretrial or posttrial diversion program or a deferral of judgment program.

c. Convictions that have been sealed, dismissed, expunged, inoperative, invalidated, or statutorily eradicated pursuant to law, or any conviction for which the convicted person has received a pardon or has been issued a certificate of rehabilitation.

d. An arrest, detention, processing diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of the juvenile court.

e. A non-felony Conviction for possession of marijuana that is two or more years old.

f. A Conviction that is more than seven (7) years old, which is measured from the date of disposition.
NOTE: There are exceptions to this enumerated in the ordinance

6) If an Employer intends to deny an Applicant or Employee a position of Employment, rescind a Conditional Offer of Employment made to an Applicant, or take any other Adverse Action against an Employee, solely or in part because of the Applicant’s or Employee’s Criminal History, the Employer must first conduct an Initial Individualized Assessment that is documented in writing, of whether the Applicant’s or Employee’s Criminal History has a direct, adverse and negative bearing on the Applicant’s or Employee’s ability to perform the duties or responsibilities necessarily related to the applied-for position, such that it justifies denying the Applicant or Employee the Employment position or justifies taking an Adverse Action against an Employee.

a. The Initial Individualized Assessment must include at a minimum, consideration of the following factors:

i. The nature and gravity of the offense or conduct, including but not limited to, consideration of whether the harm was to property or people, the degree or severity of the harm or offense, the age of the Applicant or Employee when the conduct occurred, and the permanence of the harm or offense;

ii. The time that has passed since the offense or conduct and /or completion of the sentence;

iii. The nature of the Employment position sought or held, including consideration of the specific duties of the job, whether the Employment position offers the opportunity for the same or a similar offense to occur, and whether circumstances leading to the conduct for which the person was convicted or that is the subject of an Unresolved Arrest will recur in the Employment position; and

iv. If the Applicant or Employee voluntarily provides to the Employer any Evidence of Rehabilitation or Mitigating Circumstances before or during the Initial Individualized Assessment, that evidence must also be considered as part of the Initial Individualized Assessment.

b. Rebuttable Presumption for Licenses, Certificates, or Any Other Similar Credentials. If the Applicant or Employee has obtained a license, certificate, authorization, or any other similar credential from a licensing, regulatory, or other government agency or board required for the applied-for job position, it will be presumed the Applicant or Employee’s Criminal History is not directly, adversely and negatively related to the specific duties of the job position. In order to rebut this presumption, an Employer must provide an explanation in the Initial Individualized Assessment that the Applicant or Employee’s Criminal History has a direct, adverse and negative bearing on the ability to perform the necessary duties or responsibilities of the job position such that it substantially outweighs the fact that the Applicant or Employee obtained the license, certificate, or any other similar credential for the job position.

c. Delay in Receipt of Criminal Background Check Report. An Employer cannot base a decision to rescind or withdraw a Conditional Offer of Employment solely on the fact that there has been a delay in receiving a Criminal Background Check Report of the Applicant or Employee requested by the Employer from any source, unless the Employer can demonstrate it would have suffered an undue burden in its business operations if the Employer continued to hold the job position open pending receipt of the Criminal Background Check Report, and ten (10) Business Days have passed since the time the Employer requested the Criminal Background Check Report. The Employer must disclose to the Applicant or Employee in the Preliminary Notice of Adverse Action pursuant to subsection (I) below that the Conditional Offer of Employment has been rescinded due to the delay in receiving the Criminal Background Check Report, and explain the reasons why it is an undue burden for the Employer to continue to wait for receipt of the Criminal Background Check Report, and must follow all notice and response procedures consistent with this Section.

7) Preliminary Notice of Adverse Action. If after performing the Initial Individualized Assessment, the Employer intends to withdraw or rescind a Conditional Offer of Employment and/or take any other Adverse Action, the Employer shall provide
the Applicant or Employee with a Preliminary Notice of Adverse Action.

a. The Preliminary Notice of Adverse Action must be sent to the Applicant or Employee via both regular mail and email, if an email address is available, containing the following information:

i. Notice that the Employer intends to withdraw or rescind the Conditional Offer of Employment and/or take any other Adverse Action due to the Applicant’s or Employee’s Criminal History;

ii. An explanation of the Applicant’s or Employee’s right to respond to the Preliminary Notice of Adverse Action before that decision becomes final, including information regarding:

A. the waiting periods and timelines to respond as specified in this Section, which must be displayed in bold font, underlined, or in all capital letters (All-Caps); and

B. the response may include evidence challenging the accuracy of the Criminal Background Check Report or other Criminal History information, and/or voluntary submission of Evidence of Rehabilitation or Mitigating Circumstances;

iii. A copy of the Initial Individualized Assessment;

iv. Notice of the disqualifying Conviction(s) that are the basis for the intended Adverse Action; and

v. A copy of the Criminal Background Check Report(s) obtained by the Employer, if any, and any other information or documentation relating to the Applicant’s or Employee’s Criminal History obtained by the Employer, including but not limited to, information or documentation obtained from internet searches, court records, news articles, and/or social media content.

b. Waiting Period(s) prior to Employer Taking Adverse Action. The Applicant or Employee shall have at least five (5) Business Days to respond to the Preliminary Notice of Adverse Action before the Employer can make a final decision on whether to withdraw the Conditional Offer of Employment and/or take an Adverse Action. If, however, within the five (5) Business Days described above, the Applicant or Employee notifies the Employer in writing that they: 1) dispute the accuracy of the Criminal Background Check Report or Criminal History information that was the basis for the Preliminary Notice of Adverse Action and that the Applicant or Employee is taking specific steps to obtain evidence supporting that assertion; and/or 2) the Applicant or Employee needs additional time to obtain written Evidence of Rehabilitation or Mitigating Circumstances, then the individual shall be provided at least ten (10) additional Business Days to respond to the Preliminary Notice of Adverse Action.

i. In lieu of submission of any written materials and/or documents, upon the Applicant’s or Employee’s request, an Employer shall provide the Applicant or Employee with an opportunity to present Evidence of Rehabilitation or Mitigating Circumstances orally to the Employer, via in-person, virtual or telephone contact, if the Applicant or Employee makes the request within five (5) Business Days from receipt of the Preliminary Notice of Adverse Action. The meeting with the Applicant or Employee and the Employer shall take place within ten (10) Business Days of the request to present Evidence of Rehabilitation or Mitigating Circumstances orally. This paragraph does not apply to Employers who are required by law or regulation to exclude or restrict individuals with specified Criminal History and/or specific criminal Convictions from the job position; and

ii. Any Evidence of Rehabilitation or Mitigating Circumstances is optional and may only be voluntarily provided by the Applicant or Employee, or by a third party on their behalf. An Employer cannot require an Applicant or Employee to provide any specific type of additional evidence or document of rehabilitation or mitigation.

c. The Employer cannot take any Adverse Action or fill the Employment position sought by the Applicant or Employee until five (5) Business Days have passed from the time the individual received the Preliminary Notice of Adverse Action and the Employer has not received any response from the Applicant or Employee, or if the Applicant or Employee timely responds to the Preliminary Notice of Adverse Action, until such time that the Employer issues the Final Notice of Adverse Action to the Applicant or Employee pursuant to this Section.

8) Employer’s Consideration of Applicant or Employee Response and Second Individualized Assessment. The Employer shall consider all information and documents, whether written or oral, timely submitted by the Applicant or Employee pursuant to this Section before making a final decision or taking an Adverse Action. The Employer will perform a Second Individualized Assessment, which shall be documented in writing, concerning whether the individual’s Criminal History has a direct, adverse and negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the applied-for job position, such that it justifies denying the Applicant or Employee the Employment position or justifies taking an Adverse Action against an Employee, by consideration of the following factors:

The nature and gravity of the offense or conduct, including but not limited to, consideration of whether the harm was to property or people, the degree or severity of the harm or offense, the age of the Applicant or Employee when the conduct occurred, and the permanence of the harm or offense.

The time that has passed since the offense or conduct and/or completion of the sentence.

The nature of the Employment position sought or held, including consideration of the specific duties of the job, whether the Employment position offers the opportunity for the same or a similar offense to occur, and whether circumstances leading to the conduct for which the person was convicted or that is the subject of an Unresolved Arrest will recur in the Employment position.

Any and all Evidence of Rehabilitation or Mitigating Circumstances, whether provided in written form or orally.

Any documents disputing the accuracy of the Criminal Background Check Report or Criminal History information, and/or documents or information providing an explanation regarding Criminal History information.

9) Final Notice of Adverse Action. If after performing the Second Individualized Assessment, the Employer makes a final decision to withdraw the Conditional Offer of Employment or take any other Adverse Action, the Employer shall notify the Applicant or Employee in writing both via regular mail and electronic mail, if email address is available, of all the following:

a. Notice that the Employer has made a final decision to withdraw the Conditional Offer of Employment or take Adverse Action against the Applicant or Employee.

b. A copy of the Second Individualized Assessment.

c. Notice of the disqualifying Conviction(s) that are the basis for the final Adverse Action.

d. Information regarding any existing procedure the Employer has for the Applicant or Employee to challenge the decision or request reconsideration.

e. Notice of the Applicant’s or Employee’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs (“DCBA”) for violation of the County’s Fair Chance Ordinance for Employers, and with the state’s Civil Rights Department for violation of the Fair Chance Act.

f. If the Employer is providing the Final Notice of Adverse Action more than thirty (30) calendar days after the Applicant or Employee provided a timely response to the Employer’s Preliminary Notice of Adverse Action, it will be presumed the Employer’s delay in responding to the Applicant or Employee was untimely, and in violation of this Section. In order to rebut this presumption, the Employer must provide a written explanation in the Final Notice of Adverse Action justifying why the final decision was not made within thirty (30) days, which may include, but is not limited to, circumstances involving a business or personal emergency, or a description of circumstances or delays outside of the Employer’s control.

The full text of this ordinance is available here:

https://library.municode.com/ca/los_angeles_county/ordinances/code_of_ordinances?nodeId=1276258

This law will require a review of the hiring process in place and may require changes to that process. Additionally, the law requires posting notices at hiring sites. Justifacts recommends that you consult with your legal department to determine what changes, if any, need to be made to your hiring process in order to comply with this law.

It is important to note that Justifacts is providing this information as a service to our clients. None of the information contained herein should be construed as legal advice, nor is Justifacts engaged to provide legal advice. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult your attorney or legal department if you want assurance that our information, and your interpretation of it, is appropriate to your particular situation.