By Olivia Goodkin
Mayor Eric Garcetti recently signed into law legislation seeking to protect employment applicants from discrimination based on their criminal convictions. Here is what you need to know about the new law going into effect on January 22, 2017.
The law applies to all employers (except governmental agencies) that are located or doing business in the City of Los Angeles and employ 10 or more employees, including the owners and managers of the company. Such employers must now eliminate the question that many include on employment applications asking if the applicant has been convicted of a crime. Additionally, those employers may not ask applicants prior to making a conditional offer of employment whether they have been convicted of a crime.
Once a conditional offer of employment has been made, employers may run criminal background checks and ask applicants about their criminal conviction history consistent with prior law. However, employers may not withdraw or cancel a conditional offer of employment unless they first perform a “written assessment” that “effectively links the specific aspects” of the applicant’s criminal history with the risks inherent in the duties of the position sought by the applicant. The written assessment should include a consideration of the factors identified by the Equal Employment Opportunity Commission in evaluating an applicant’s criminal history. A detailed discussion of the factors to be taken into account can be found here.
An employer should be able to demonstrate that the conviction would put the company at risk if the employee were hired. For example, hiring a person convicted of fraud for an accounting position may be too much of a risk. On the other hand, hiring a person convicted of driving under the influence of alcohol would not be a risk factor for the same job, assuming the position did not involve driving.
Prior to withdrawing or canceling a conditional offer of employment (the “adverse action”) the employer must first provide the written assessment to the applicant, and provide the applicant with a “Fair Chance Process.” The Fair Chance Process gives the applicant at least five business days to provide information or documentation for the employer to consider in response to the written assessment. If the applicant does so, then the employer must perform another written assessment of the proposed adverse action and provide that written assessment to the applicant if the adverse action is taken.
There are posting and notification requirements under this new law as well. Employers must state in all solicitations or advertisements seeking applicants that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of the new law. Employers also must post a notice in a conspicuous place in the workplace detailing the provisions of the law.
The new law does not apply to employers who are required by law to obtain conviction information regarding an applicant. Specifically, the law also does not apply to: (1) applicants required to possess or use a firearm in the course of employment; (2) individuals who are prohibited from holding the position sought if they have been convicted of a crime; and, (3) employers who are prohibited by law from hiring an applicant who has been convicted of a crime.
Employers who violate the new law prior to July 1, 2017, may be given warnings by the Department of Public Works, Bureau of Contract Administration, which bears administrative responsibilities under the new law, but thereafter employers may be liable for administrative fines. Employers will also be civilly liable for any violations. This can become particularly onerous because the frequent use of a non-compliant employment application may expose the employer to class actions.
Please contact any member of our Employment Law Department for more information.
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