"Ban-the-Box" Rules Continue to Spread

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Reference & Background Investigations
Recruiting & Hiring

In recent years, multiple states and municipalities have enacted "ban-the-box" laws. These laws vary in size and shape, but generally do one or more of the following:

  1. Require employers to wait until the conditional offer stage to seek criminal history information from job applicants;
  2. Limit the types of crimes that employers may consider;
  3. Require employers to give special notices to job applicants regarding the employer’s use of criminal history information; or,
  4. Mandate that employers allow candidates to provide additional information about the circumstances of their crime or their life changes since the crime.

One of the newest "ban-the-box" laws that employers should be mindful of covers Los Angeles employers and applicants. Enforcement of the "Los Angeles Fair Chance Initiative for Hiring (Ban the Box)" Ordinance began on July 1, 2017.

Summary of Los Angeles’ Ban the Box Law

The Los Angeles ordinance generally applies to employers "doing business" in Los Angeles that have at least ten employees. An individual is generally counted as an employee if he or she performs on average at least two hours of work per week in the City of Los Angeles.

  1. Los Angeles now generally prohibits private employers from inquiring about criminal histories until after a conditional job offer has been made. This means that employers cannot include a criminal history question on an application, ask about criminal history during a job interview, or conduct a background check before making a conditional offer of employment.
  2. Los Angeles’ ban-the-box ordinance also requires employers to follow a "Fair Chance Process" if they are considering adverse action based on information from an applicant’s criminal history. Broadly speaking, before taking any adverse action, employers must:

    Step 1: Perform a "written assessment" that, at minimum, considers the factors identified by the EEOC and which links the applicant’s criminal history "with risks inherent in the duties of the Employment position sought by the Applicant." This appears to require consideration of the EEOC’s "Green Factors" (i.e., nature of the crime, nature of the job, and how long ago the conviction occurred).

    Step 2: Provide the applicant with written notification of the proposed adverse action, a copy of the written assessment, and any other information or documentation supporting the potential adverse action.

    Step 3: Wait at least five business days after the applicant is informed of the potential adverse action before taking final action.

    Step 4: If the applicant provides any information or documentation pursuant to the Fair Chance Process, the employer must perform a "written reassessment" of the proposed adverse action. If still electing to take the adverse action, the employer must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

  3. The ordinance also contains other requirements that go beyond the application/hiring process itself. For example, the ordinance requires that employers must state in all job advertisements and solicitations for employment that they will consider for employment qualified applicants with criminal histories "in a manner consistent with the requirements of this [ordinance]."
  4. A full copy of the ordinance is available at: http://bit.ly/2qleDDe.

Take Away: Given the scope of Los Angeles’ rule change, employers with a connection to Los Angeles should review their background screening processes and materials to make sure they comply with the new requirements. All employers—whether based in Los Angeles or otherwise—will want to keep an eye out for additional "ban-the-box" developments. Most observers expect that multiple new "ban the box" laws will come to fruition in the remaining months of 2017.

This information is provided for general informational purposes only and should not be construed as legal advice.

Source: Scott Paler, JD, DeWitt Ross and Stevens S.C.