By Laurie Nooren, SPHR, PHRca, SHRM-CP

In California, employers can no longer ask applicants about their criminal history before a conditional offer of employment is made. We hope this isn’t news to you.  Employers in unincorporated areas of Los Angeles County with five or more employees now have further restrictions, which became effective March 28, 2024.  If you hire employees in Los Angeles County, you have additional requirements regarding language in job postings, written requirements for conducting criminal checks, prohibition about asking applicants to disclose their criminal history, conducting individualized assessments when criminal background results are received, and going through the pre-adverse and adverse action process with applicants. Failure to comply with these regulations as of September 3, 2024, may result in penalties and fines.

We’ve outlined key points below to ensure your Company’s adherence to these regulations. However, this is by no means an all-inclusive list of the ordinance’s specifics.

Job Postings, Solicitations, Bulletins, and Advertisements:

  • Include language stating that qualified applicants with arrest or conviction records will be considered for employment in accordance with the Los Angeles County Fair Chance Ordinance for Employers and the California Fair Chance Act.
  • Avoid making statements in postings that no persons with criminal history will be considered for hire or should not apply to the position and cannot include phrases such as “No Felons,” or “No Convictions.” You may say “Background Check Required,” but you may not include phrases such as “Must Have Clean Background” or “Must Pass Background Check.”
  • If you are going to conduct a criminal background check, you must include a list of all job duties for that position you “reasonably believe” the criminal history may have a direct, adverse and negative relationship, potentially resulting in the withdrawal of the job offer.

Legal Requirements:

  • Specify any local, state, or federal laws or regulations that impose restrictions or prohibitions for employment due to criminal history.
  • Unless legally required, refrain from inquiring about an applicant’s criminal history before extending a conditional offer of employment.

Conditional Offer and Assessment:

  • Provide written notification to the applicant that the conditional offer of employment is contingent upon the review of the applicant’s criminal history.
  • Conduct an individualized assessment where necessary on a case-by-case basis. Retain supporting justification provided in writing.

Pre-Adverse and Adverse Actions:

  • Adhere to specific timelines and documentation requirements for any pre-adverse or adverse action taken against applicants.

Notices and Record Keeping:

  • Post notice of the ordinance at every workplace or on any website viewed by employees or applicants. 
  • Provide copies to unionized employees, if applicable.
  • Retain pertinent records for a minimum of four year.
  • Notices will be made available by the County of Los Angeles Department of Consumer and Business Affairs (DCBA) before the September 3, 2024 effective date. 

Bottom line: Even after extending a conditional job offer, you may not ask candidates directly about their criminal history as you can in the rest of California.  You may do so after you first receive the criminal background check. Even then you must limit questions to seven years of criminal history with few exceptions (e.g. working with minors or dependent adults, etc.) and cannot ask questions about non-criminal infractions, except for driving infractions if the position requires driving for work.

If you hire employees in Los Angeles County, please contact your Silvers HR Consultant to discuss these requirements and ensure compliance with this new law.