Los Angeles County Enacts Fair Chance Ordinance

Author: Emily Scace, XpertHR Legal Editor

March 15, 2024

Employers in the unincorporated areas of Los Angeles County, California, will soon face stringent new limits on their ability to conduct criminal background screening of employees and job applicants.

Under the Fair Chance Ordinance, which takes effect September 3, 2024, employers that intend to conduct criminal background checks must wait to do so until after extending a conditional offer of employment. The employer must provide written notice to the applicant of its intent to conduct the background check and a complete list of the types of information it intends to review, along with a justification for the background check based on the specific duties of the job.

If an employer intends to rescind a job offer or take other adverse action based on its criminal background check, it must conduct a written individualized assessment of the relationship between the job and the individual's criminal history. The assessment must include, at a minimum:

• 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 job; and
• Any evidence of rehabilitation or mitigating circumstances the individual provides.

An employer that decides to take adverse action based on this assessment must provide written notice to the individual, along with an explanation of their right to respond before the decision becomes final and the procedures and time frame for doing so. The employer must consider any information the employee provides in response and perform a second individualized assessment. If the employer still intends to withdraw the offer, it must provide the applicant or employee with:

• A Final Notice of Adverse Action;
• A copy of the second individualized assessment;
• Notice of the disqualifying conviction(s);
• Information regarding any procedure to challenge the decision or request reconsideration; and
• Notice of the individual's right to file a complaint with the Los Angeles County Department of Consumer and Business Affairs and the California Civil Rights Department.

Certain categories of criminal information are excluded from consideration altogether for most roles, including arrests not followed by a conviction, referrals to diversionary programs, sealed or expunged convictions, juvenile offenses, non-felony marijuana possession that is two or more years old, convictions that are more than seven years old, and convictions for conduct that has since been decriminalized.

Job-Posting Requirements

The ordinance also prohibits covered employers from preventing or discouraging applicants or employees with criminal history to apply or respond to job postings.

Specifically, employers may not include statements in job advertisements indicating that individuals with criminal history will not be considered, such as "No Felons," "No Convictions" or similar language. An employer may state "Background Check Required" or similar language in a job posting but may not include phrases such as "Must Have Clean Background" or "Must Pass Background Check."

If a federal, state or local law requires an employer to bar or restrict employees with certain types of criminal history for a position, the employer must include information on the laws that impose these restrictions in the job posting. In addition, an employer that intends to conduct a criminal background check for a particular position must list the specific job duties it believes may have a direct, adverse and negative relationship with criminal history.

The ordinance also contains notice and posting requirements and protections against retaliation. Employees and applicants have a private right of action and may obtain damages, back pay, reinstatement, attorney fees and other appropriate relief.