Hiring and Firing in Los Angeles: Fair Chance Initiative Update
Employment Defense
by Tal Burnovski Yeyni
818-907-3224
We told you about Los Angeles’ Ban the Box ordinance in early December. Also known as the Fair Chance Initiative for Hiring Ordinance (FCIHO), the new regulation seeks to reduce recidivism by limiting inquiries regarding applicants’ criminal histories.
The City of Los Angeles recently posted further resources online in connection with the FCIHO. They include:
- Rules and Regulations for Implementing FCIHO
- Notice to Applicants and Employees (for Private Employers or City Contractors)
- Assessment and Reassessment Forms
- Sample Letter: Notice to Rescind Employment Offer
- Complaint Forms (in English and Spanish for applicants and employees)
If you read our post in December (see link above), you know that employers must include in employment ads notice regarding compliance with the FCIHO.
Employers may not inquire about an applicant’s criminal history until AFTER an initial offer of employment has been made – in other words, not on a job application or during the interview or selection process. If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and performs written assessment.
The Rules and Regulations suggest that the employer shall at least consider the following factors in the assessment:
- What is the nature and gravity of the offense? (The harm caused by the criminal conduct should be considered)
- How much time has passed since the offense? (Convictions remote in time are less significant than similar more recent ones)
- What is the nature of the job duties and responsibilities? (Consider the job’s essential functions and the circumstances under and the environment in which the job is performed.)
- Is the employer looking at ONLY convictions? Arrests cannot be considered in employment decisions.
Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application. The Rules and Regulations specify that if an employer relied on oral information to form a determination of Adverse Action, the employer should summarize this information by putting it in writing and maintain it with the employment records. For example, a verbal reference check with former Employer should be documented.
Of course, certain exceptions still apply, i.e. if the employer is mandated by federal or state law to obtain information regarding conviction, especially if the position requires the use of a firearm, or if the employer is prohibited by law from hiring applicants with criminal convictions. Also, some applicants may be prohibited from holding certain positions because of their criminal histories.
Remember, fines on employers who violate the Rules and Regs of FCIHO will be imposed as of July 1, 2017.
Tal Burnovski Yeyni is an attorney in our Employment Practice Group.