Can I ask whether a job applicant has previously been convicted of a crime?

City Council voted in December 2016 to pass the Los Angeles Fair Chance Initiative (LAFCI), an ordinance that prohibits many business owners from asking about a potential job applicant’s prior criminal history, at least until a conditional job offer has been made.

The ordinance applies to all employers located in or doing business in the City of Los Angeles with ten or more employees.  The ordinance also applies to all city contractors with ten or more employees. There are some exceptions that apply in certain fields, with child care and law enforcement being prime examples.

The idea behind the initiative, also regularly referred to as ban the box laws, is to stop employers from automatically dismissing a job candidate because they have been convicted of a crime.

Make sure you know as an employer whether it is okay, and at what step of the process, to ask a job candidate if they have been convicted of a crime.

Companies covered by this new ordinance should immediately take the following steps:

• If necessary, review and revise your applications and job offers. Remove any questions or statements about the criminal history of the job applicant.
• If you are advertising a job opening, you must state in the solicitation that you will consider all qualified applicants with a criminal record consistent with LAFCI.
• Post a notice somewhere at all job sites informing applicants about the LAFCI. According to the State of California Department of Industrial Relations, workplace postings should be in “area frequented by employees where it may be easily read during the workday.” Some employers will post the notice in their break room alongside other workplace notices.
• Talk to an attorney about putting the LAFCI into practice in your business. After you have made a conditional offer of employment you can ask the applicant about criminal convictions – but there are strings attached! This is where the ordinance gets complicated. You cannot withdraw the application based on the response to any question regarding criminal history without a thorough analysis, and a job offer withdrawal can include holding the job open in order to give the applicant time to respond to your decision. Your attorney can guide you through this process in order to keep you compliant. It is worth avoiding any fines.
• Retain all applications and any relevant documents for three years.

The LAFCI went into effect in January, and the ordinance is expected to be enforced by the city’s Office of Wage Standards. Penalties for violating the ordinance will begin on July 1.  Fines could be up to $500 for the 1st violation, $1000 for the 2nd violation and up to $2000.00 for the 3rd and subsequent violations. Violations of the notice and record retention requirements will result in fines of up to $500 for each violation.  An individual who reports the violation may receive up to $500 if the allegations are upheld.  Compliance with this law will help employers avoid unnecessary fines that impact their bottom line.

An estimated 1 in 4 adult Californians has an arrest or conviction record on file with the state. That number grows to 1 in 3 for the country as a whole.  Ban the box laws like LAFCI are rapidly gaining momentum with 11 major cities and nine states across the nation having adopted similar legislation. Nationwide employers will want to assess their employment screening practices, and for areas not yet affected it could just be a matter of time. As for the City of Los Angeles – it is here!

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