Ban the Box: LA and Beyond
The Los Angeles Fair Chance Initiative for Hiring (Ban the Box) became law in January 2017. This new initiative will impact employers in LA, but may have far-reaching effects. With employment legislation, California often leads the nation in trends and enforcement, so employers across the country may want to take heed. The ordinance prohibits employers from inquiring about criminal history until a conditional job offer has been made.
Why Ban the Box?
The new LA law mirrors, and in some cases expands upon, many such regulations sweeping the nation. Ban the Box initiatives hope to open employment opportunities to candidates whose criminal record have kept them from entering or reentering the workforce.
The “Box” at issue is the “check here if you’ve ever been convicted of a felony or misdemeanor” frequently appearing on job applications. For many employers, the checkmark is an automatic disqualifier of the candidate before they read any further. Whether or not the conviction is relevant to the work being performed or how long ago the conviction was enforced, many employers simply discard the application.
For candidates seeking a productive role in society, the box has been a difficult obstacle to overcome. Without the opportunity to discuss the past issue, the available position, and whether or not they even relate, the automatic disqualification has impact. Some point to the “boxes’” disparate impact on minority communities, while others submit the question itself, without context, substantially limits opportunity for the candidate as well as the employer.
While this new incarnation of the law affects Los Angeles employers, the trend to Ban the Box has momentum. Smart employers may look to the Fair Chance Initiative to revise their thinking or policies when considering how the “box” impacts their applicant base.
Fair Chance Initiative in Hiring
The rule covers any person who submits an application or resume for any type of work, including vocational and educational training, paid or unpaid. Employers with at least 10 employees are subject to the rule for any applicant that will work in Los Angeles.
"The location of the job is critical. The ordinance applies to jobs performed in the City. It doesn't apply when an L.A. resident applies for a job outside the City. For telecommuting employees who work from home, outside the city, the rules only apply if they work an average of 2 hours per week in an office located in the city."
Rod M. Fliegel
Co-Chair, Privacy and Background Checks Practice Group/Shareholder
Littler Mendelson PC
The ban prohibits inquiries into felony or misdemeanor conviction history, whether the person was on probation, fined, jailed, or paroled. This includes inquiries on applications, during interviews, or independently (using the internet or a service) at any time before a conditional offer of employment is made.
There are exceptions to obtain information on an applicant’s conviction record if:
- The position requires the use of a gun
- The employer is required by law to run a criminal background check on an applicant
- The applicant is prohibited from holding the position
- The employer is prohibited from hiring a person convicted of a crime
The Fair Chance Process
Only after a conditional offer of employment has been tendered, may the employer seek information about criminal background history. If the search uncovers a candidate’s criminal history, the law outlines a required process that must be met before any adverse action against the applicant can occur, including rescinding the job offer. Employers must:
- Create a written assessment outlining the links of the criminal history with the risks inherent in the position. Minimally, the employer must consider factors identified by the EEOC, such as conducting a personalized assessment, and comply with any rules issued by Los Angeles’ Designated Administrative Agency;
- Provide the applicant with written notice of any proposed action, a copy of the written assessment, and any documentation supporting the proposed adverse action;
- Allow the applicant a minimum of 5 days to respond to the notice before taking any adverse action or filling the position with another candidate;
- If the candidate responds and provides any information or documents, consider the information and create a written reassessment based on the new data. If the reassessment continues to adversely affect the candidate, provide notification and a copy of the written reassessment.
Download the form of notice from the Department of Public Works Bureau of Contract Administration for detailed information about the ordinance, along with posting and notification requirements for employers.
While the Fair Chance Initiative for Hiring is an LA-based law, many of its provisions make sound business sense. Eliminating a candidate who, for example, was convicted of a minor offense in their youth reduces not only their opportunity to contribute; it shrinks the available applicant pool. The Initiative may make sound business sense for your company, even if you’re outside LA.