In an effort to further promote fair hiring practices, Los Angeles County adopted a new Fair Chance Ordinance for the unincorporated areas of the County. This ordinance, which takes effect today, imposes stringent requirements on employers who request, obtain, or consider criminal history in the hiring process.

Key provisions  

Though not an exhaustive list, here are some of the more significant requirements in the ordinance:   

Wide applicability. The ordinance applies to any employer with five or more employees who is located in the unincorporated areas of Los Angeles County, or doing business there regardless of location. 

• “Employer” includes temporary, referral, and job placement agencies, and any entity that evaluates an applicant or employee’s criminal history on behalf of the employer.  
• “Employment” includes contract and freelance work. The physical location of the work must be within the unincorporated areas of Los Angeles County, including remote work from a location within the unincorporated areas of the County. 
• “Applicant” includes individuals seeking employment and current employees seeking promotion.  
• “Employee” means any individual whose job (or prospective job) involves performing at least two hours of work on average each week within the unincorporated areas of the County.  

Job postings. California law already prohibits employers from including questions about an applicant’s criminal record in recruitment ads, applications, or during a job interview. 

However, employers covered by the ordinance must now affirmatively include in job postings a statement that qualified applicants with arrests or convictions will be considered.

If an employer is required by law or regulation to restrict or prohibit the hiring of applicants with certain specified criminal histories, the ad must identify all laws or regulations that impose such restrictions.

Additionally, if an employer intends to review an applicant's criminal history after making a conditional offer of employment, the job posting must list all “material job duties” that the employer “reasonably believes” may be directly, adversely, and negatively affected by an applicant's criminal history.  

Conditional offer contingent on background check. California law generally prohibits employers with five or more employees from making pre-offer inquiries into an applicant’s criminal history. Although post-offer inquiries are generally permitted in California (subject to restrictions), the County Ordinance imposes additional notification requirements on affected employers. Under the ordinance, if an employer intends to conduct a review of an applicant’s criminal history post-offer, the applicant must be notified of this intent in writing at the time the conditional offer is made. The notice must state that the conditional offer is contingent on passing the criminal history review and a specific statement about the employer’s “good cause” to review such information. It is not enough for the employer to merely say that it reviews such information out of generalized “safety concerns.”  

The conditional offer must also provide a complete list of all types of background and history that will be reviewed, including, for example, education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, or medical examination. 

After extending a conditional job offer, employers may not ask applicants about their criminal history until the criminal background check report has been obtained. The employer must then provide a copy of the report to the applicant before discussing any criminal history information with the applicant. Even then, the scope of the criminal history inquiry is limited (with some exceptions) to seven years from the date of disposition, and it generally cannot include certain types of questions such as questions about certain cannabis-related convictions, pending charges, and questions about non-criminal infractions, except for driving-related infractions for jobs that require some driving for work.  

Individualized assessment. Similar to a Los Angeles City ordinance, the County ordinance requires employers to conduct an individualized written assessment of an applicant’s or employee's criminal history before rescinding a job offer or taking adverse action. As with California state law, the assessment must consider various factors, including but not limited to the nature and gravity of the offense or conduct, the time that has passed, and the nature of the job.   

Notification of potential adverse action and subsequent individualized assessment. As already required by California and federal law, if after the initial assessment, the employer intends to take adverse action based in whole or in part on the applicant’s criminal history, the employer must provide to the applicant or employee a written notice, a copy of the report or other criminal history information, and the opportunity to respond. The County ordinance requires that the notice be sent by both mail and email, if the employer has the individual’s email address. The individual must be given at least five business days to respond with any evidence of inaccuracy, mitigation, or rehabilitation. During this period, the employer is not permitted to take any other adverse employment action or to fill the position.  

If the individual indicates that more time is needed to provide supplemental information, the employer must wait at least 10 additional business days and then consider any additional information provided.  The second individualized assessment must also be documented.

Notice of decision. If the employer decides to take adverse employment action after a second individualized assessment, written notice of the adverse employment action is required, again by regular and electronic mail if an email address was provided. The notice must include the basis for the decision, any process for reconsideration, a copy of the second individualized assessment, and notification of the individual’s right to submit a complaint to the Los Angeles County Department of Consumer & Business Affairs (for violations of the ordinance) and the state’s Civil Rights Department (for violations of state law). An applicant or employee has one year to file a complaint with the County Department for violations of the ordinance, and three years to file a complaint with the Civil Rights Department for violations of state law.  

If the final notice of the decision is sent more than 30 days after an individual’s response to the initial pre-adverse action letter, the final notice should include an explanation of the reason for the delay. 

Recordkeeping and compliance. Employers must maintain records of job postings, employment decisions, and any criminal history information obtained for at least four years.  

The ordinance also requires that employers post notices about the ordinance in conspicuous places at the workplace and on webpages frequently visited by their employees or applicants.  

Implications for employers

The County ordinance imposes additional compliance burdens on employers, particularly those who operate in multiple jurisdictions that may have their own laws related to criminal background information. Employers must update their postings, form documents, and hiring policies and procedures to ensure compliance with the new requirements. The County has published the new Notice on its website, which also indicates that additional guidance is forthcoming. Failure to comply with the ordinance can result in significant penalties and potential private civil actions.  

If you have questions about the FCO or would like guidance on ensuring compliance, please contact any attorney in our Escondido, Los Angeles, Orange County, San Diego, or San Francisco Offices.