Complying with Unprecedented Criminal History Requirements in Los Angeles County | Foley & Lardner LLP

Los Angeles County’s Fair Chance Ordinance for Employers (FCOE), which took effect on September 3, 2024, imposes several new compliance requirements regarding the consideration of criminal history in hiring decisions. While some of these requirements mirror those of California state law, many of the FCOE’s requirements go a step further.

Los Angeles County has “joined the chat”

In 2016, Los Angeles enacted the Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO) to regulate the use of criminal background checks when hiring workers within the city. Shortly thereafter, California enacted the Fair Chance Act (FCA) in 2018, which imposed similarly comprehensive regulations on employers with five or more employees operating in the Golden State.

Not to lag behind the city and state, the Los Angeles County Board of Supervisors passed the FCOE earlier this year, which went into effect on September 3, 2024. The FCOE goes beyond state law by establishing stricter rules for the use of criminal background information in hiring decisions in unrecorded Los Angeles County is comprised of over 100 distinct municipalities spread across 2,653.5 square miles (or 65%) of the total county area. Given this geographic reality, many employers in and around the Southern California region are likely to be subject to the FCOE’s stringent requirements.

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The FCOE applies to all employers that 1) are located in or do business in the unincorporated areas of Los Angeles County and 2) employ five or more people, regardless of location. Specifically, owners, managers, and supervisors must be included to determine whether this five-person threshold is met. In addition, the term employer is defined broadly to include employment or temporary staffing agencies, nonprofit organizations, and companies that evaluate an applicant’s criminal history on behalf of other companies.

The ordinance defines employees as individuals who work (or, in the case of applicants, are expected to work) on average at least two hours per week in the unincorporated areas of the county. In addition, the FCOE defines “employment” broadly to include full-time employees, part-time employees, contract workers, temporary or seasonal workers, and fixed-term/interim employees.

The physical work location must be within the unincorporated areas of Los Angeles County, and the ordinance defines this to include remote work from any location within the unincorporated areas of the county. Therefore, the potential impact of this law on out-of-state employers with remote workers in unincorporated Los Angeles County should not be overlooked.

Los Angeles County provides a useful website to determine if a facility or teleworker’s address is in unincorporated Los Angeles County.

Important provisions

The FCOE expands on current requirements under state law and creates entirely new obligations for employers whose employees work in unincorporated areas of Los Angeles County. Some, but not all, of the ordinance’s provisions are summarized below.

Prohibited requests

Similar to state law, the FCOE prohibits employers from inquiring about an applicant’s criminal history before making a conditional offer (even if the applicant voluntarily discloses that information during the initial hiring process). The FCOE imposes additional restrictions by prohibiting employers from discussing an applicant’s criminal history before the criminal background check is completed and a copy is provided to the applicant for review.

Look-back periods

The FCOE limits the consideration of the criminal past to a look-back period of no more than seven years. In contrast, state law generally does not impose any time limit on criminal records, with a few exceptions (e.g., juvenile delinquency, arrests that did not result in a conviction, etc.).

Job advertisements and advertising obligations

Both the FCOE and state law prohibit statements in job advertisements, postings, bulletins, postings, and internal company announcements that discourage people with criminal records from seeking employment (e.g., “We do not hire felons”). However, the FCOE requires that employers also provide a written statement of intent to conduct a criminal history check in conjunction with the job advertisement. The statement must include a list of all “essential job duties” of the job that are reasonably directly, adversely, and negatively related to the criminal history and could potentially result in the withdrawal of a conditional offer of employment. If an employer is required by law to reject applicants with certain criminal records, the employer must also identify in the job advertisement the relevant statutory provisions imposing this restriction.

Conditional offers

Unlike the California FCA, which does not impose specific requirements on the language of conditional job offers, the FCOE requires that conditional job offers include:

• A written statement that the offer is contingent upon a criminal background check;
• A written “reasonable justification” why the police clearance check is necessary for the position (a general statement citing only “security concerns” is not sufficient); and
• Written disclosure of any other background checks or screening requirements conducted by the employer, such as drug testing, social media history, or educational verification.

Written assessments

Both the FCOE and state law require employers to conduct an individual assessment of the applicant’s criminal history before withdrawing a conditional offer of employment. However, unlike the FCA, the FCOE requires that the individual assessment be documented in writing. And provided to the applicant together with the mandatory preliminary and final adverse action notices before a conditional offer of employment is revoked.

Harsh penalties

Unlike state law, which provides for maximum fines of $500 for violations, the FCOE provides for far higher penalties, including fines of up to $20,000 per violation, as well as additional sanctions from the Los Angeles County Department of Consumer and Business Affairs that may impact an employer’s business license.

Given the burdensome requirements of the FCOE, as well as the breadth of its potential application to numerous employers doing business in Los Angeles County and the surrounding area, employers are strongly encouraged to review their background check practices with legal counsel to clarify scope issues and ensure full compliance with the law.

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