Since California’s enactment of the Fair Chance Act (“Act”) over six years ago, California’s private and county employers with five or more employees have become well-acquainted with the Act’s general prohibition of employers asking applicants to disclose conviction history before making a job conditional job offer. Los Angeles County employers with five or more employees in unincorporated areas of LA County now must be mindful of additional requirements under the County’s new Fair Chance Ordinance For Employers starting March 28, 2024, when the ordinance goes into effect and becomes fully operative (i.e., permitting administrative enforcement, imposition of penalties, civil actions, etc.) on September 3, 2024. 

CDF provides this summary of the most impactful and, candidly, burdensome provisions from the 40-page text of the Ordinance:

Even before an application, the Ordinance impacts recruiting efforts with specific language requirements for “all job solicitations, bulletins, postings, announcements and advertisements,” including:

• A statement 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.”
• The general prohibition of any “statements in job solicitations, bulletins, postings, announcements, and advertisements that no persons with Criminal History will be considered for hire or should not apply.”
• The express identification “of any and all … laws or regulations that impose restrictions or prohibitions for” hiring applicants with criminal histories for a posted position.
• A list of all “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.”

Unless otherwise legally required, the Ordinance also goes beyond the Fair Chance Act by prohibiting pre-conditional offer inquiries about criminal history, seemingly subjective subtle efforts to encourage disclosure of criminal history and premature termination of an interview upon the interviewer’s early disclosure of conviction.

Further, the Ordinance requires that if conditional offers of employment are to be conditioned on a criminal history check, the employer must provide the applicant with a written rationale of good cause for conducting the criminal history check in the conditional offer itself. The employer also may not ask the applicant to disclose their own criminal history information.

As with the Fair Chance Act, in the event an Employer intends to deny a position of employment or rescind a Conditional Offer “solely or in part because of the Applicant’s” Criminal History, the Employer must first conduct and document an initial Individualized Assessment” of whether the Applicant's Criminal History “has a direct, adverse and negative bearing” on their ability to perform the duties or responsibilities necessarily related to the applied-for position, such that it justifies denial. But the Ordinance increases the level of detail, which must be provided if, after the Initial Individualized Assessment, the Employer intends to withdraw or rescind a conditional offer of employment or take any other adverse employment action. The Employer shall provide the applicant or employee with a preliminary notice of the adverse action containing the following:

• Notice of intent to withdraw conditional offer and/or take any other adverse employment action due to criminal history,
• An explanation of the applicant’s right to respond to the notice before the decision becomes final, including the waiting periods,
• A copy of the initial individualized assessment itself,
• Notice of the disqualifying convictions, and
• A copy of the criminal background check report.

The employer must give the applicant or employee five business days to respond to the preliminary notice of adverse action before making a final decision. The applicant must then be given at least ten business days to either (i) respond to the preliminary notice if the applicant notifies the employer that they dispute the accuracy of the background check and is taking steps to obtain evidence, or (ii) present evidence of rehabilitation or mitigating circumstances orally at a meeting between the applicant and the employer.

The employer must consider all of the information and documents, whether written or oral, timely submitted before making a final decision or taking an adverse action and the employer must complete a second individualized assessment. If, after a second individualized assessment, the employer makes the final decision to withdraw the conditional offer or take adverse employment action, the employer shall notify the applicant in writing again within 30 days of the applicant’s response to the preliminary notice.

Finally, the Ordinance provides that employers must retain all of these records for four years. Moreover, be aware that the Ordinance empowers the County’s Department of Consumer and Business Affairs to investigate and issue $5K, $10K, and $20K penalties for each progressive violation of these requirements. Moreover, private civil litigation is expressly authorized.