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Revised Application for Employment – City of Los Angeles Provides Additional Guidance Regarding Use of Criminal History in Employment

On January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) ordinance went  into effect and placed restrictions on when employers are permitted to seek information about an applicant’s criminal history and refuse to employ an applicant based on the applicant’s criminal history. After the ordinance went into effect, the City of Los Angeles issued rules and regulations as well as additional documents related to the ordinance which can be found here.

 

To assist in complying with the ordinance and the rules and regulations subsequently issued, a revised Application for Employment which excludes any question related to criminal history is available here.  To the extent that applicants for employment in the City of Los Angeles are required to complete an application prior to receiving a conditional offer of employment, the revised Application for Employment or one that excludes any question related to criminal history should be used.  As an alternative, if an employer uses as application that asks about criminal history, the City’s rules and regulations allow employers to include a disclaimer that applicants should not respond to those questions about their criminal history on the application.  For example:  For jobs located in the City of Los Angeles, you should not answer this question.  The City’s rules and regulations state that the disclaimer should be next to the question asking for criminal history.

 

Below is information about some of the key aspects of the ordinance and the obligations it imposes on employers.

 

Restrictions on Inquiring About Criminal History

The Ban the Box ordinance generally prohibits employers from asking applicants about an applicant’s criminal history prior to making a conditional offer of employment to the applicant.  The ordinance also generally prohibits employers from inquiring about or requiring disclosure of an applicant’s criminal history, such as through interviews or criminal history reports, prior to a conditional offer of employment being made to the applicant.

 

Fair Chance Process

Before taking adverse action against an applicant to whom a conditional offer of employment has been made based on the applicant’s criminal history, employers are generally required to provide applicants with a “Fair Chance Process” which includes the following steps:

  • Perform a written assessment that effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought by the applicant.  The City has provided a form to be used for this purpose and which can be accessed here.
  • Provide the applicant with written notification of the proposed adverse action to the applicant, a copy of the written assessment, and any other information or documentation supporting the employer’s proposed adverse action.  The City has provided a template for such written notification which can be accessed here.
  • Provide the applicant at least five business days to provide information or documentation to the employer regarding the accuracy of the criminal history or evidence of rehabilitation or other mitigating factors.  The City requires the employer to hold the position open during this time.
  • The employer is required to consider the information or documentation provided by the applicant and perform a written reassessment of the proposed adverse action.  The City has provided a form to be used for this purpose and which can be accessed here.
  • If after performing the reassessment, the employer takes adverse action against the applicant, the employer shall notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

 

Record Retention

The City requires employers to retain all records and documents related to an applicant’s employment application and the written assessments and reassessments performed for a period of three years following the receipt of the applicant’s employment application.

 

Notice and Posting Requirements

The City requires employers to state in all solicitations or advertisements seeking applicants for employment that the employer will consider for employment qualified applicants with criminal histories.  Additionally, employers are required to post a notice informing applicants about the ordinance and, if applicable, send a copy of the notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding.  The City has provided notices for private employers and city contractors which are available here.

 

The ordinance has certain limited exceptions and does not apply in the following circumstances:

  • The employer is required by law to obtain information regarding a conviction of an applicant.
  • The applicant would be required to possess or use a firearm in the course of employment.
  • An individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation.
  • An employer is prohibited by law from hiring an applicant who has been convicted of a crime.

 

The ordinance allows applicants and employees to bring a private cause of action for violations of the ordinance.  Additionally, the City may impose fines of up to $2,000 per violation although fines will not apply prior to July 1, 2017.  Prior to July 1, 2017, the City will only issue written warnings for violations.

 

If you have any questions or require further information, please contact one of MBA’s Human Resources Managers at 888-622-6460

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