LA County’s Criminal Background Check Ordinance Is Live Today - For Unincorporated Areas Only
Posted September 3, 2024

In the immortal words of Bruce Buffer, “It’s Time”. Effective today, September 3, 2024, Los Angeles County (“LA County”) has implemented its local County Fair Chance Ordinance for Employers (“FCO”). The FCO prohibits employers with five or more employees that operate within the geographical boundaries of any unincorporated area of LA County from seeking information about the conviction history of an applicant before making a conditional job offer. Further, the FCO requires covered employers to perform an in-depth individualized assessment of an applicant’s conviction history before rescinding a job offer based on criminal history.

California employers are still required to comply with California’s Fair Chance Act (“FCA”), better known as the "Ban the Box" law; however, the FCO imposes an additional layer of obligations and requirements for those businesses or employees doing business in unincorporated areas of LA County. The FCO is enforced by the LA County’s Department of Consumer and Business Affairs (“DCBA”).

General information to assist covered employers in their compliance efforts is below:

Which employers must comply with the new FCO?

  • Businesses with five or more employees that are located within the geographical boundaries of any unincorporated areas of LA County;
  • Employees performing at least two hours of work on average each week within the unincorporated areas of LA County (including remote employees).

How do I know if my business or employee is in “unincorporated” LA County?

  • A list of unincorporated areas of Los Angeles County can be found here;
  • To review a specific business or employee address with LA County’s Registrar Recorder, click here.

What procedures do I follow if the FCO applies to my business or employee?

  1. Job Posting Updates:
    • Covered employers must ensure that all job postings include specific language denoting adherence to both the FCO and FCA, and make clear that qualified applicants will be considered in accordance with the FCO.
    • Job postings MAY include language such as, “Background Check Required”, but must NOT include phrases such as, “Must Have Clean Background” or “Must Pass Background Check”.
    • Job postings must NOT include language such as: “No Felons” or “No Convictions”.
    • Businesses subject to laws that prevent the hiring of individuals with a criminal history, must specify in the job posting the laws or regulations that impose these restrictions.
    • Businesses that plan to conduct a review of criminal history after the interview process, must include “a list of all material job duties of the specific position in which [they] believe a criminal history may have a direct, adverse, and negative relationship potentially resulting in the withdrawal of a conditional offer of employment”.
  2. Conditional Offer Letters Require Updates:
    • The conditional offer must explain what background information will be gathered and must make clear that a job offer is contingent upon review of the background check.
    • Covered employers are not to have any discussion of criminal history until after the background check is completed and a copy is provided to the candidate.
    • It also must include specific language to justify the need for a background check in relation to the particular role itself. Simply stating “for safety reasons” will not suffice for the FCO.
  3. Pre-Adverse Action Requirements – Actions to Take Prior to Rescission:
    • Before rescinding a conditional job offer, employers must first conduct an Individualized Assessment. This has very specific requirements, and must be done in writing.
    • If an employer decides to issue a preliminary notice to rescind a conditional job offer, the employer must provide the decision to rescind in writing to the applicant, and the employer must include a copy of the background report.
    • The applicant then has five business days to respond to this preliminary notice to rescind. If the applicant requests more time to respond, they will be granted a minimum of an additional 10 business days.
    • If an applicant submits a dispute to the preliminary notice to rescind, the employer must conduct a second assessment, documented in writing.
    • If after the second assessment, the employer makes a final decision to withdraw the conditional job offer, then a second written notice must be sent to the applicant. It must include: (1) a copy of the second assessment, (2) identify the disqualifying conviction, (3) inform the applicant if there are any other options available to the applicant to request reconsideration, and (4) notify the applicant of the right to file a complaint with the DCBA.

The above is a brief summary of a few FCO requirements. The full FCO is located here. LA County has also issued FCO FAQs here, and “An Employers Guide to Hiring System-Impacted Individuals" located here. Covered employers are strongly encouraged to review these materials for additional information.

For questions about employment law issues, contact the attorneys at LightGabler LLP.

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