Los Angeles County, California Has a New Fair Chance Ordinance, Effective Today

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Patricia Tsipras

September 3, 2024

Effective today (September 3, 2024), Los Angeles County has a new fair chance hiring ordinance that provides additional rights to individuals with a criminal history who are seeking employment in the unincorporated areas[1] of Los Angeles County.

The Fair Chance Ordinance (Ordinance) is designed to complement California’s Fair Chance Act (FCA).  The FCA prohibits most California employers from asking questions about an applicant’s criminal record prior to extending a conditional offer of employment.[2]  The FCA also prohibits blanket bans that exclude all applicants with criminal records or certain convictions.  The Ordinance clarifies the rights of applicants, introduces additional compliance requirements, and improves enforcement by introducing penalties.

To Which Employers Does the Ordinance Apply?

The Ordinance applies to any employer located in or doing business in the unincorporated areas of Los Angeles County that employs five or more employees (including those providing services pursuant to a contract) who perform at least two hours of work on average each week within the unincorporated areas of the County.

What Does the Ordinance Prohibit or Require?

• As to job postings:
  • Employers cannot include language like: No Felons, No Convictions, Must Have Clean Background, Must Pass Background Check, etc.
  • Employers must include language in a job posting stating that qualified applicants with arrest or conviction records will be considered for employment.
  • If a law prevents an employer from hiring individuals with a criminal history, the employer must identify the law in the job posting.
  • If an employer intends to review an applicant’s criminal history after extending a conditional offer of employment, the employer must include in the job posting a list of all material job duties of the position with which it believes a criminal history may have a direct, adverse, and negative relationship.

• Employers cannot ask about criminal history before making a conditional offer of employment. The offer of employment must state, in writing, that it is contingent on review, for good cause, of the applicant’s criminal history.  No discussion of criminal history can occur until after the criminal background check is completed and a copy is provided to the applicant.

• Employers cannot encourage an individual to disclose criminal history or require disclosure of criminal history prior to extending a conditional offer of employment.

• Employers cannot end an interview or reject an application based on criminal history information that was obtained prior to extending a conditional offer of employment.

• Employers cannot end an interview early if an applicant reveals criminal history or reject an application because an individual did not provide criminal history information.

• With limited exceptions[3], employers cannot consider an applicant’s conviction if it is more than seven years old, measured from the date of disposition.
• If an employer intends to rescind a job offer based on a criminal background check:
  • The employer must prepare an Initial Individualized Assessment[4], in writing, to demonstrate that the prior conviction(s) relate to the job duties.
  • The employer must provide to the applicant a preliminary notice[5] of adverse action.
  • The employer must give the applicant five days to respond to the preliminary notice.
  • If the applicant provides additional information, the employer must perform a second assessment, in writing.
  • If the employer makes a final decision to take adverse action, the employer must send a written notice[6] to the applicant.

What If An Employer Violates the Ordinance?

If an employer violates the Ordinance, it can face monetary penalties and, in some circumstances, action against licenses:

• For a first violation, a penalty of up to $5,000 for each aggrieved applicant or employee.
• For a second violation, a penalty of up to $10,000 for each aggrieved applicant or employee.
• For the third and subsequent violations, a penalty of up to $20,000 for each aggrieved applicant or employee.
• The Department of Consumer and Business Affairs may recommend that any license issued by the County or any departments thereof be suspended, revoked, or denied.

The Ordinance also authorizes private rights of action following exhaustion of an individual’s remedies before the Department of Consumer and Business Affairs.

Employer Takeaways

Employers with operations in Los Angeles County should update job postings and employment application forms; post a notice in the workplace about the Ordinance; and train Human Resources and hiring managers about the Ordinance, the FCA, and compliance with them.

This article is only a summary of the Ordinance.  Seek counsel to ensure full compliance.

The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in California, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.

[1] Los Angeles County has 88 incorporated cities, meaning each of them has their own city council.  Areas in Los Angeles County that are not in these 88 incorporated cities are considered unincorporated, meaning that the County’s Board of Supervisors is their “city council” and the Supervisor representing the area is their mayor.

[2] A “conditional offer of employment” is the point at which an employer agrees to hire an applicant, but only after certain conditions are met.

[3] Certain exceptions exist to the seven-year look-back period, including work with (1) minors; (2) dependent children; (3) persons aged 65 or older; (4) public funds or benefits.

[4] Considerations for the assessment include: (1) the nature and gravity of the offense; (2) the time that has passed; (3) the nature of the job; and (4) any evidence of rehabilitation or mitigating circumstances.

[5] The notice must (1) state that the intended adverse action is based on review of the applicant’s criminal history; (2) explain the applicant’s right to respond; (3) provide a copy of the employer’s assessment; (4) provide notice of the disqualifying conviction(s); and (5) provide a copy of the criminal background check report.

[6] This notice must include (1) a copy of the second assessment; (2) notice of the disqualifying conviction(s); (3) information about any procedure of the employer to challenge the decision; and (4) notice of the applicant’s right to file a complaint with the Los Angeles County Department of Consumer and Business Affairs for violation of the Ordinance and/or with the California Civil Rights Department for violation of the FCA.