'Ban the Box' spreading to private employers

California's extensive and protective body of employment law has long made it one of the most challenging states for employers to conduct business. However, local ordinances enacted in various cities from San Diego to San Francisco even further add to the hurdles that employers face. And with more and more cities enacting regulations on issues such as wages, paid sick leave and criminal background checks, the landscape will only become increasingly difficult for employers.

"Ban the Box" legislation limiting how employers obtain and use information regarding criminal convictions in the hiring process is not new to California, however, initially its applicability was limited to public employers. In 2014, San Francisco implemented its own Fair Chance Ordinance expanding the scope of Ban the Box legislation to private employers. And last month, with the enactment of the Fair Chance Initiative for Hiring (Ban the Box) Ordinance, the city of Los Angeles implemented one of most restrictive in the country for private employers. Employers located or doing business in the city of Los Angeles with 10 or more employees and/or independent contractors now face a heavy burden when seeking to screen out applicants with criminal convictions during the hiring process.

Employers may not ask questions on employment applications or in the interview process that seek information on an applicant's criminal history, and are permitted to make such inquiries only after a conditional offer of employment has been extended. Once a conditional offer of employment has been made, an employer may not withdraw the offer or otherwise refuse to employ the applicant based on any such criminal history until it completes a written assessment. The written assessment must "effectively link" the applicant's criminal history with risks inherent in the applicant's prospective job duties and show that the exclusion of applicants due to criminal convictions is "job related and consistent with business necessity." At a minimum, the employer's analysis must include consideration of: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct, or completion of the sentence; and (3) the nature of the job held or sought.

An employer must also allow the applicant to complete the "Fair Chance Process" prior to taking any adverse action due to the conviction history. The Fair Chance Process requires an employer to give the applicant written notification of the proposed adverse action, a copy of the written assessment described above, and any other information or documentation supporting the proposed adverse action. An employer must then wait at least five business days after giving notice to the applicant before taking the adverse action or filling the position. During that time, an employer must allow the applicant to provide documentation regarding the accuracy of the criminal history report or information that should be considered in the employer's assessment. An employer must then consider any information or documentation from the applicant and complete a written reassessment of the proposed adverse action. If an employer still decides to move forward with the proposed adverse action, an employer must provide the applicant with notification of that decision as well as a copy of the written reassessment.

The Los Angeles Ban the Box Ordinance also requires employers to include specific language regarding its provisions in all job postings, solicitations or advertisements for employment. Employers must also post a notice regarding the ordinance at every location in Los Angeles visited by applicants, and send the notice to labor unions or similar organizations with which they have collective bargaining or other similar agreements applicable to employees who work in Los Angeles. Employers must also retain records related to all employment applications, written assessments, and reassessments for a period of three years.

Besides certain public employers, four other categories of employers are exempt from these onerous obligations: (1) where an employer is required by law to obtain applicants' conviction information; (2) where the position would require the employee to possess or use a firearm; (3) where a criminal conviction would prohibit an applicant from holding the position by law; and (4) where an employer is prohibited by law from hiring an applicant with a criminal conviction.

Applicants or employees may file complaints with the Department of Public Works, the administrative agency responsible for administering the Los Angeles Ban the Box Ordinance, within one year of an alleged violation. Violations of the Los Angeles Ban the Box Ordinance can subject employers to fines and penalties of between $500 and $2,000. Applicants or employees may also choose to bring a civil action against an employer within one year of the completion of the administrative process. Moreover, just as with most other employment regulations, the ordinance includes a strong prohibition against retaliation, which can also lead to complaints or lawsuits.

While the Los Angeles Ban the Box Ordinance seeks to reduce unemployment by facilitating the employment of applicants with criminal convictions, whether it will achieve that goal is yet to be seen. Employers still face potential liability from lawsuits for negligently hiring, supervising and/or retaining an unfit employee. Accordingly, employers must still appropriately screen its applicants and exclude those who present a particular risk - only now, the process and documentation required to do so is immensely burdensome.

Beyond the burden imposed by Ban the Box ordinances, employers must also grapple with multiple minimum wage and paid sick leave regulations. In addition to state-mandated paid sick leave, the cities of Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco and Santa Monica all have their own paid sick leave ordinances which provide employees with between 24 and 72 hours of paid sick leave per year. And in addition to California's minimum wage requirement, there are approximately 30 other minimum wage ordinances throughout California that place the minimum wage in those areas between $10 and $15.37.

Various local ordinances have differing provisions regarding when, where and how they impact employers and employees based on factors such as the size and location of the employer, as well as when and where its employees work, so employers are advised to remain vigilant regarding what ordinances apply to them and consult with counsel when necessary.