Los Angeles County Adopts New Fair Chance Ordinance

March 29th, 2024 | Chris Christian, Director of Compliance

On February 27, 2024, the Los Angeles County Board of Supervisors adopted a new Fair Chance Ordinance for Employers (“The Ordinance”). The Ordinance will provide additional rights, protections, and enforcement mechanisms for persons with criminal history seeking employment in  unincorporated Los Angeles County, aiming to align with California’s  Fair Chance Act, enacted in 2018 and the City of Los Angeles’s  Fair Chance Initiative for Hiring Ordinance enacted in 2016.  The Ordinance will be effective September 3, 2024. 

The Ordinance contains many key provisions aligned with California and City of Los Angles Fair Chance laws but also has unique provisions of its own. 

Ordinance Scope and Definitions 

The Ordinance applies broadly to organizations located/doing business in the County that employ five (5) or more employees regardless of location.  

An “employee” is defined as anyone performing at least two (2) hours of work on average each week in the County’s unincorporated areas. An “Employer” includes job placement, temporary agency, referral agencies and other employment agencies and non-profit organizations. 

The Ordinance defines “Employment” as any occupation, vocation, job, or work, including but not limited to temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, including non-profit organizations, or any form of vocational or educational training with or without pay.  

Employment also means work or services provided pursuant to a contract in the furtherance of an employer’s business enterprise (i.e. independent contractors or freelancers). The physical location of the employment must be within Los Angeles County, including remote, teleworking or telecommuting.  

Job Postings 

Employers must not include phrases such as “No Felons,” “No Convictions,” or “Must Have Clean Background” in job postings. One new section that is unique to LA County requires employers to   include a list of all material job duties of the position which the employer reasonably believes criminal history may have a direct, adverse and negative relationship. 

Prohibited Inquiries Prior to Conditional Offer of Employment 

Unless legally required, employers are prohibited from making an inquiry regarding criminal history prior to extending a conditional job offer to a candidate. 

Notice of Intent to Conduct Background Check 

Another unique requirement is that, if the employer intends to conduct a review of criminal history after extending a conditional job offer, the employer must provide a written notice to the candidate, which generally includes the following:  

  • A statement that the Conditional Offer of Employment is contingent upon the review of the individual’s Criminal History. 
  • A statement that the employer has good cause to review criminal history, with supporting justification. 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 history, reference checks, credit history, license or credential verification, drug testing, or medical examinations. 

Prohibited Inquires Prior to Receipt of Criminal Background Check Reports 

Following a Conditional Offer of Employment, if the employer will be obtaining a criminal background check regarding the candidate, the employer may not ask or request that the candidate provide information about their criminal history (i.e. through a criminal history self-disclosure or questionnaire) prior to the employer’s receipt of the criminal background check report. An employer must provide the candidate with a copy of the criminal background check report before an employer discusses any criminal history information with them. 

Prohibited Consideration of Criminal History 

The Ordinance outlines the types of criminal history which employers are prohibited from considering at any time: 

  • An arrest not followed by conviction, except for unresolved arrests, and in limited circumstances as permitted in Section 432.7 of Labor Code.  
  • Referral to or participation in a diversion program or a deferral of judgment program. 
  • Convictions that have been sealed, dismissed, expunged, or where the convicted person received a pardon or has been issued a certificate of rehabilitation.  
  • An arrest, detention, adjudication, or court disposition while the person was subject to the process and jurisdiction of the juvenile court.  
  • A non-felony conviction for possession of marijuana that is two or more years old. 
  • A conviction more than seven years old, with limited exceptions for positions that involve providing services or care to a minor, dependent, or person 65 years or older; or a position that involves services relating to public funds or benefits, if the conviction history relates to financial or fraud crimes.  
  • Information pertaining to an offense other than a felony or misdemeanor, such as an infraction, except for driving infractions when related to the duties of the job.  
  • A conviction that arises out of conduct that has been decriminalized since the date of the conviction. 

This list is more expansive than other state and city laws, and employers need to consider where there is overlap or differences from other applicable laws.  

Individualized Assessment & Factors 

Once criminal history is reviewed, prior to taking any adverse action, the employer must conduct an Initial Individualized Assessment, documented in writing, of whether the candidate’s criminal history has a direct, adverse and negative bearing on the person’s ability to perform the duties of the job. 

Factors to Consider for the Initial Individualized Assessment:  

  • The nature and gravity of the offense or conduct;  
  • The time that has passed since the offense or conduct and/or completion of the sentence;  
  • The nature of the position, including but not limited to, consideration of the specific duties of the job and whether the position offers the opportunity for the same or a similar offense to occur; and  
  • If the applicant or employee voluntarily provides any evidence of rehabilitation or mitigating circumstances at this stage, this evidence must also be considered. 

Preliminary Notice of Adverse Action  

After performing the Initial Individualized Assessment, if the employer decides to withdraw the conditional job offer and/or take any other adverse action, a Preliminary Notice of Adverse Action must be sent to the individual, via both regular mail and email, if an email address is available, containing the following information: 

  • 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 
  • 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:  
  • The waiting periods and timelines to respond, which must be displayed in bold font, underlined, or in all capital letters; and 
  • The individuals’ 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; 
  • A copy of the Initial Individualized Assessment. 
  • Notice of the disqualifying convictions that form the basis for the intended adverse action. 
  • A copy of the criminal background check report(s) obtained by the employer 

Alternatively, if the employer is required by law to exclude or restrict individuals with specified criminal history and/or specific criminal convictions from the job position, the employer’s explanation of the applicant’s or employee’s right to respond to the Preliminary Notice of Adverse Action is limited to: 

  •  Evidence challenging the accuracy of the Criminal Background Check Report or other Criminal History information. 
  •  Evidence or explanation addressing discrepancies regarding Criminal Background Check Reports and other Criminal History information. 

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 candidate unless they can demonstrate  an undue burden in its business operations if they continued to hold the job position open, and ten (10) Business Days have passed since the time the employer requested the report.  

The employer must disclose, in the Preliminary Notice of Adverse Action, that the conditional offer of employment has been rescinded due to the delay in receiving the background check report and explain the reasons why it is an undue burden for the employer to continue to wait for receipt of the background check report, following all notice and response procedures. 

Waiting Periods for Taking Adverse Action 

The candidate will have at least five (5) business days to respond to the Preliminary Notice before an employer can make a final decision. The employer cannot take any adverse action or fill the employment position until the five business days have passed from the time the individual received the Preliminary Notice of Adverse Action. If, however, the candidate notifies the employer in writing that they: 

  • Dispute the accuracy of the background 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  
  • The applicant or employee needs additional time to obtain written Evidence of Rehabilitation or mitigating circumstances; 

Then the candidate shall be provided at least ten (10) additional business days to respond to the Preliminary Notice of Adverse Action. 

In lieu of a written response, upon request, a candidate can show evidence of rehabilitation or mitigating circumstances orally to the employer, via in-person, virtual or telephone contact. The meeting with the candidate and the Employer must take place within ten (10) Business Days of the request. 

Second Individualized Assessment  

Following receipt of a candidate’s response to the Preliminary Notice, the employer must perform a second Individualized Assessment, documented in writing, assessing the same factors contained in the Initial Individualized Assessment, and the candidate’s response. 

Final Notice of Adverse Action 

If after the second Individualized Assessment, the employer makes a final decision to withdraw the conditional job offer or take other adverse action, the employer must send a final written notice, which generally includes:  

  • Notice that the employer has made a final decision to withdraw the conditional offer of employment or take adverse action against the candidate. 
  • A copy of the second Individualized Assessment.  
  • Notice of the disqualifying conviction(s) that are the basis for the final adverse action. 
  • Information regarding any appeal procedure the employer has for reconsideration of the decision.  
  • Notice of the person’s right to file a complaint with the 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. 

If the Employer is providing the Final Notice of Adverse Action more than thirty (30) calendar days after the candidate 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 the employer must provide a written explanation in the Final Notice of Adverse Action which may include circumstances involving a business or personal emergency, or a description of circumstances or delays outside of the employer’s control. 

Timelines For Delivery of Notices 

Regarding the delivery of the preliminary adverse and final adverse action notices, employers may consider the notices to be deemed received by the candidate if the notice is sent without delivery confirmation: 

  • five (5) calendar days after mailing within California 
  • ten (10) calendar days after mailing outside of California 
  • Twenty (20) calendar days after mailing outside of the United States 

If notice is sent by email, the notice is deemed received two (2) business days after it is sent; however, candidate timelines to respond to the notice will be calculated based on the date the notice was mailed by the employer. Any applicant or employee response required will follow the same mail and email timelines as noted above. However, an applicant or employee can send a response to an employer by mail or email. 

Take Aways 

Employers should consider reviewing and updating their background screening policies and procedures as they relate to applicants and employees in Los Angeles County. Employers who might be relying on existing procedures based on California and/or City of Los Angeles to meet compliance with Los Angeles County requirements will need to review and make adjustments as needed given the differences in each of the laws. Employers are encouraged to work with legal counsel before changing their background screening policies and practices.   

The full text of the new ordinance can be found HERE 

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