Is Your Company Prepared for the Fair Chance Ordinance?

A new Ordinance affecting Employers who are located in or doing business in unincorporated areas of Los Angeles County with five or more employees, goes into effect on September 3, 2024.

The Fair Chance Ordinance (“Ordinance”), which supplements California’s 2018 Fair Chance Act (“Fair Chance Act”) seeks to level the playing field for job applicants with criminal histories, so that they may obtain gainful employment.

Employers must not prevent nor discourage job applicants or employees with criminal histories from applying for or responding to job solicitations, postings, advertisements or other announcements. The Ordinance also imposes new written notice requirements on covered Employers, prior to conducting background checks on applicants or employees. 

Below is a breakdown of the new law based on the chronological events in the hiring cycle:

• Job Postings (new requirements for specific written notice):  In all job postings for open positions, the Employer must state the following: (1) qualified applicants with arrest or conviction records will be considered for employment; (2) specific laws and regulations that restrict or prohibit hiring individuals with certain criminal histories; and (3) a list of all material job duties for positions where a criminal background may directly and negatively impact employment, potentially leading to the withdrawal of a conditional job offer. 

• Conditional Offer Letters (new requirements for specific written notice):  must provide written notice containing the following: (1) a statement that the conditional job offer depends on the review of the applicant's criminal history; (2) justification for reviewing the applicant's criminal history; (3) a comprehensive list of all information and history that the Employer will review (such as education, social media history, employment history, driving history, reference checks, drug testing).

The Ordinance also prohibits Employers from considering the following: (1) arrests not followed by conviction (although unresolved arrests can be considered); (2) referrals to or participation in a diversion or deferral of judgment program; (3) convictions that have been sealed, dismissed, expunged, etc.; (4) juvenile records; (5) non-felony convictions for possession of marijuana that are more than two years old; (6) any conviction more than seven years old; (7) infractions, with the exception of some driving infractions; and (8) convictions arising out of conduct that has been decriminalized since the conviction.

• Individualized Assessment, Preliminary Notice of Adverse Action (already required under the FCA, but LA ordinance expands the requirement):  If an Employer intends to withdraw a conditional offer, it must provide the applicant with a preliminary notice of this action. This notice must be sent via both regular mail and email, if an email address is available, and include the following information: (1) notice of intent to withdraw the conditional offer of employment due to criminal history; (2) explanation that the applicant will have 5 business days to respond to the preliminary notice, and 10 business days to dispute the accuracy of the background check and/or present evidence of rehabilitation before the final decision; (3) a copy of the individualized assessment; (4) notice of the specific convictions that are the basis for the adverse action; and (5) a copy of the criminal background check report and any other information related to the applicant's criminal history that were considered. 

• Second Individualized Assessment (new requirement under the LA ordinance):  A second individualized assessment is required if applicant timely submits information and documents challenging the offer withdrawal/preliminary notice.  If the final decision is still to withdraw the conditional offer, the Employer must notify the applicant in writing within 30 days of the applicant's response to the preliminary notice.

• Record Retention:  The Employer must maintain all records for four years. 

The Ordinance provides for DCBA enforcement and a private right of action for an individual who has met the administrative exhaustion requirements.  Both legal and equitable relief are permitted, including penalties as delineated in the Ordinance, back pay, monetary damages, reinstatement of employment or other appropriate injunctive relief, as well as reasonable attorneys’ fees and costs.

This summary is intended to be a non-exhaustive overview of the requirements of the Ordinance, which is more than 40 pages in length.  Affected Employers should contact experienced Employment Law counsel with any questions regarding the ordinance.

For effective, experienced legal counsel, contact The Law Offices of Katharina Martinka today!