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City of Los Angeles Passes Ban The Box Ordinance

On November 30, 2016, the Los Angeles City Council passed the “Fair Chance Initiative,” also known as the “Ban the Box Initiative,” which prohibits employers that do business in Los Angeles from inquiring about or asking about a job applicant’s criminal history.  The ordinance will go into effect on January 1, 2017.

An employer may only inquire about an applicant’s criminal history if the applicant is going to work in Los Angeles after offering the applicant a “conditional offer of employment.”  After providing the applicant this conditional offer, the employer is prohibited from taking any adverse action, including withdrawal or cancellation of the applicant’s conditional offer, unless the employer performs a written assessment linking the applicant’s criminal history with the risks inherent in employing the applicant.  In performing this assessment, the employer is required to consider the factors identified by the United States Equal Employment Opportunity Commission, such as the nature of the crime, the time elapsed, and the nature of the job.

Prior to taking any adverse action against the applicant, the employer must provide the applicant written notice of the assessment described above.  The employer must then wait 5 business days after informing the applicant of the proposed adverse action before withdrawing or canceling the conditional offer of employment.  If the applicant provides the employer with any documentation, the employer must reassess the applicant’s criminal history based on the new documentation.  If the employer ultimately decides to take an adverse action, it must notify the applicant.

Penalties for violating the ordinance are as follows: $500 for the first violation, $1,000 for the second violation, and $2,000 for the third violation.  Employers are required to retain all documents related to the applicant’s employment application, including the written assessment and reassessment for three years.

Employers must state in all advertisements seeking applicants for employment that they will consider qualified applicants with criminal histories.  Employers must also post a notice of the provisions of the Ordinance in a conspicuous place at every workplace and shall send a copy of such notice to any labor union or representative of workers with which they have a collective bargaining agreement.

Employers doing business in Los Angeles should remove criminal history questions from their employment applications.  Employers should contact legal counsel to assist them in complying with this new Ordinance prior to its January 1, 2017 effective date.