By Daniel V. Kitzes (originally posted on March 7, 2017 in Employment Law Worldview)
If you have not heard about the “Ban the Box” movement, it is time to take notice. Ban the box refers to a check box present on many standard job applications, whereby an applicant is asked whether they have any prior criminal history. Plainly speaking, proponents of Ban the Box initiatives are seeking to eliminate this part of the application process to enable people with criminal convictions a fair chance at finding gainful employment. In less than a decade, 24 states – including California – have adopted some form of the ban, often for public employees. Nine states have banned the box for private employers, as well. In 2014, San Francisco enacted a ban for private employers, and just this past January, a similar initiative has gone into effect in Los Angeles.
Article 9 was added to the Los Angeles Municipal Code on December 9, 2016, to take effect January 22, 2017. Its provisions apply to employers with ten or more employees. The Article actually does quite a bit more than simply ban the box. Under the new terms, employers may not, in any way, inquire about or require disclosure of an applicant’s criminal history until after a “conditional offer” is made. Even then, an adverse action – including withdrawal of the conditional offer – cannot be taken unless the employer performs a written assessment taking into consideration, at a minimum, the factors identified by the Equal Employment Opportunity Commission when considering criminal history. The employer must also effectively link the criminal history with the risks inherent in the duties of the position sought.
That’s not all: the assessment must be given to the applicant, and the position must then be held open for five days. During this time, the applicant may submit information or documentation to clarify their criminal history or bolster their application. If after this “fair chance process,” the employer again finds adverse action is appropriate, the employer is obligated to notify the applicant of the decision, and provide them with a copy of the assessment.
Notice, Posting, and Record Retention Requirements
The Article creates some new notice and posting requirements. First, any solicitation or advertisement seeking applicants for employment must state that the employer will consider qualified applicants with criminal histories consistent with the requirements of the Article. Further, employers must place a notice informing applicants of the provisions of the Article in a conspicuous place at every workplace, job site, or location in the employer’s control visited by applicants. Notice must also be provided to each labor union or representative of workers with which they have a collective bargaining agreement.
Employers must also retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Article for a period of three years. These records must be produced to the Department of Public Works in an administrative enforcement proceeding under the Article.
There are four exceptions to application of the article:
1. If an employer is required by law to run a criminal background check on an applicant to obtain information on an applicant’s conviction;
2. If the job sought requires the possession or use of a gun;
3. If the person who has been convicted of a crime is prohibited by law from holding the position sought; and
4. If an employer is prohibited by law from hiring an applicant who has been convicted of a crime.
Enforcing the Article
The Department of Public Works has authority to investigate complaints of violations of the Article, and to engage in administrative enforcement proceedings to obtain remedies against employers. These remedies include civil penalties, and “any other legal and/or equitable relief as may be appropriate to remedy the violation.” Penalties accrue at $500 per violation for failure to post the appropriate notices, or to retain appropriate records. Any other violation will result in fines of $500 for the first instance, $1,000 for the second, and $2,000 for the third and any subsequent violations.
Finally, the Article contains a built-in grace period until July 1, 2017. Any violation of the Article prior to July 1 will result in a written warning.
Ultimately, it is not too late to ensure there are no improper requests or inquiries for an applicant’s criminal history. Employers should review applications, solicitations for employment, and interview questions and processes to make certain the entire hiring process is in compliance with the new provisions.
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