You may have heard that Los Angeles County has implemented a new Fair Chance Ordinance, which went into effect on September 3rd, 2024, and applies to the unincorporated areas of Los Angeles County (ULAC). This law prohibits employers in these areas from asking about criminal history before receiving the results of a background check.
“Fair Chance” or “Ban the Box” laws have been an emerging trend in the background screening space for quite some time. New York City’s Fair Chance Act and San Francisco’s City and County Fair Chance Ordinance are just a few examples of similar city, county, and state-level laws. This ordinance builds on the existing California Fair Chance Act (CFCA) and the City of Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO).
Unlike other “Fair Chance” or “Ban the Box” laws, this one goes further when running background checks. Most laws of this nature allow employers to inquire about criminal history after a conditional offer of employment has been made. The new ULAC ordinance goes a step further, prohibiting employers from asking candidates about their criminal history post-offer, until after the candidate has received a copy of their criminal background check report. This makes the ULAC different from any other Fair Chance law. In essence, many employment applications and background check forms will need to remove questions regarding criminal history in order to comply with the ULAC.
Like the CFCA, the ULAC requires employers to state that candidates with arrest or convictions records will be considered for employment in accordance with the FCIHO and CFCA. As such, employers will also need to reference the ULAC in their job postings.
Additionally, the ULAC requires employers to list all material job duties that could be impacted by criminal history in a direct, adverse, and negative way, which could lead to the withdrawal of the conditional offer of employment. The ordinance also mandates employers to include specific language in their offer letters.
Under California’s Labor Code and the CFCA, there is already a list of criminal history that employers cannot inquire about or consider when making hiring decisions. The ULAC adds to this list by making it unlawful for employers to inquire about or consider:
Like the FCIHO, the ULAC requires employers to provide candidates with the employer’s written assessment with the candidate’s adverse action notice(s) via mail, with an added requirement to send it by email as well. The ULAC also expands the timeframe and format in which candidates may present information related to accuracy or rehabilitation to the potential employer.
Another important aspect of the law touches on the new complexities surrounding LA County Criminal Records Searches. The ULAC specifically prohibits employers from withdrawing a candidate’s offer solely due to a delay in receiving their background check unless the employer can demonstrate that holding the position open would create an undue burden and ten business days have passed since the employer ordered the check (with written notice to the candidate explaining the situation).
As always, our goal is to keep our clients informed about changes that may affect background checks, while also collaborating to devise solutions. We are particularly mindful of ordinances of this nature as our clients often hire nationwide. We welcome the opportunity to discuss further!
This article is for informational purposes only and should not be considered legal advice, guidance, or counsel. We recommend consulting with employment counsel to determine the appropriate next steps for your organization.
Erica Lucero Alden spent over a decade doing unscripted and scripted Business & Legal Affairs and Production Legal for NBCUniversal and Netflix. Her first job was Diligence Counsel at NBCUniversal, and she couldn't resist returning to her roots as COO and General Counsel at Checkers International. She enjoys wandering her Los Angeles neighborhood with her partner and two sons, improving her tennis game and watching the sky change during sunset with a seasonal beverage in hand.
