July 14, 2020

Volume X, Number 196

July 13, 2020

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Los Angeles Issues Rules and Regulations Implementing ‘Ban the Box’ Legislation

The Los Angeles Fair Chance Initiative for Hiring Ordinance (“FCIHO”) went into effect on January 22, 2017. The Bureau of Contract Administration (BCA), the Designated Administrative Agency responsible for enforcing the Ordinance, has issued “Rules and Regulations” (“Regulations”) for the FCIHO. These are published on the BCA’s Office of Contract Compliance/Equal Employment Opportunity website. (For detailed analysis of the Ordinance’s requirements, see our article, Los Angeles Enacts ‘Ban the Box’ Legislation.)

BCA also has published a “Notice to Rescind Employment Offer Sample Letter” for use by covered employers (private employers with at least 10 employees) to comply with the FCIHO. Required postings, in English and Spanish, for covered employers are available from BCA. Complaint forms also are available.

In addition, on February 17, 2017, BCA published a written assessment form that must be used by employers who consider an applicant’s Criminal History.

Highlights of Regulations

Definitions – The Regulations attempt to clarify terms in the FCIHO or in the Regulations themselves:

  • “Applicant” was revised to refer to an individual submitting an application or other documentation for employment to an employer “regardless of location.”

  • The definition of “Employee” was expanded. For example, the Regulations state that: (1) for purposes of determining whether an individual performs at least two hours of work on average each week within the City, “average week” is based on the last four complete weeks before the position is advertised; (2) traveling through the City without making work-related stops does not bring an individual within FCIHO’s coverage; and (3) an individual who lives and works in the City for an employer outside of the City (i.e., a “telecommuter”) is covered under the FCIHO. Significantly, the FCIHO definition of “Employee” states that an individual must “qualif[y] as an employee entitled to a payment of a minimum wage from any Employer under the California minimum wage law…” to be deemed an Employee. The Regulations’ definition of “Employee” states that an employer’s designation of an individual as an independent contractor is not conclusive for purposes of FCIHO coverage. In other words, even if an independent contractor (who is not covered under the California minimum wage laws) is properly classified, there is an argument that he or she may be covered under the FCIHO, although the issue is unclear. A misclassified contractor is covered under the FCIHO.

  • Definitions of “Equal Employment Opportunity Commission (EEOC) Enforcement Guidance,” “Individualized Assessment” (which was explained but not defined in the FCIHO), and “Temporary Help Firm” were added.

Regulation #2A – This interprets section 189.02 of the FCIHO and provides employers with much-needed clarity:

  • Employers with multi-state operations using a single employment application are permitted to include a disclaimer next to the question asking for a criminal history.

  • Employers are prohibited from including a statement indicating that criminal background checks must be “passed to be considered for a position.”

  • The pre-conditional offer prohibition against inquiring about or requiring disclosure of an Applicant’s Criminal History applies to any form of communication – e.g., application, interview, or criminal history report. Employers can look into an Applicant’s qualifications and background generally, including by conducting internet searches, but cannot do so to discover that individual’s criminal history prior to extending a conditional employment offer.

Regulations #2B and #2C – These interpret section 189.03 of the FCIHO and outline employers’ requirements in assessing an Applicant’s criminal history as well as the Fair Chance Process. In assessing an Applicant’s Criminal History, employers, at a minimum, must consider the Green factors identified in the EEOC Enforcement Guidance: (i) the nature and gravity of the offense or conduct; (ii) the time that has passed since the offense or conduct and/or completion of the sentence; and (iii) the nature of the job held or sought. The Regulations also list examples of “relevant individualized evidence” that, according to the EEOC Enforcement Guidance, an Applicant may submit for the purposes of the employer’s re-assessment. If an Applicant does not submit any evidence or other information within the specified time, an employer has no further responsibilities under the FCIHO. On the other hand, if an Applicant submits evidence or other information, the employer must complete the same assessment again, this time considering what the Applicant provided.

Regulation #2D – While this purportedly interprets the notice and posting requirements, it repeats the exact language of the FCIHO.

Regulation #2F – This interprets the FCIHO’s recordkeeping requirements, clarifying that employers must summarize in writing any “oral information” relied upon in making an employment decision (such as a verbal reference check with an Applicant’s former employer) and maintain it along with the other required records.

Regulation #3 – This not only restates the section 189.07 exceptions and sections 189.12 and 189.13 limitations of the FCIHO’s reach, but identifies additional requirements for employers availing themselves of these exceptions and limitations. Regulation #3C states that, because BCA “will not assume that an entire employer or industry will receive an exception,” employers are urged to maintain an “exception log” and to notify Applicants of the exception they are asserting.

Regulation #4 – This addresses civil and administrative enforcement, but it appears that further clarification may be needed.

Sample Letter

The BCA’s “sample letter” assists employers in complying with the FCIHO’s requirement that Applicants who an employer has deemed to pose an unreasonable risk be given “written notification of the proposed Adverse Action” and be provided with at least five business days (after receiving the notification) to complete the Fair Chance Process. Additionally, Regulation #2B(3) states, in relevant part, that employers must provide “a written notification of the proposed Adverse Action” and “the date the Applicant is notified.” The scope of the letter goes beyond what is required under the FCIHO and Regulations by (1) stating, in detail, employers’ various obligations under the FCIHO and (2) including the address, phone number, and email address for the BCA.

Individual Assessment and Reassessment Form

The BCA’s Individual Assessment and Reassessment Form was drafted to comply with the FCIHO’s requirement that employers assess Applicants’ criminal histories. The “assessment” portion of the form must be completed if an employer plans to take adverse action. The Regulations state that employers, at a minimum, must utilize the EEOC Enforcement Guidance Green factors.

The “reassessment” portion of the form must be completed by an employer if an Applicant provides documentation or other information within the specified time (five business days). It references many, but not all, of the types of “relevant individualized evidence” (under Regulation #2C) that employers should consider when performing a reassessment.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 59

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