This post was last updated May 11, 2017.

As reported in our previous alert, effective January 22, 2017, the Fair Chance Initiative for Hiring (“LAFCIH”) ordinance prohibits employers (with 10 or more employees) from inquiring about an applicant’s criminal history until a conditional job offer has been extended and imposes significant compliance obligations. The Department of Public Works Bureau of Contract Administration (the “BCA” or the “Department”), which bears administrative responsibilities for the LAFCIH, in addition to its rules and regulations published In February, has now provided forms and further guidance to help covered employers (and city contractors/subcontractors) meet their compliance requirements.

The forms and guidance include the following:

 

It is recommended that all covered employers and city contractors/subcontractors review the materials provided by the BCA.  Penalties and fines for violations of the LAFCIH will be imposed starting July 1, 2017.

 

What is this about: As reported in our previous alert, effective January 22, 2017, the Fair Chance Initiative for Hiring (“LAFCIH”) ordinance prohibits employers from inquiring about an applicant’s criminal history until a conditional job offer has been extended and imposes significant compliance obligations. The Department of Public Works Bureau of Contract Administration, which bears administrative responsibilities for the LAFCIH, in addition to its rules and regulations (the “Regs”) to guide covered employers (and city contractors/subcontractors) in meeting compliance requirements published last month, has now posted an “individualized assessment and reassessment form.” It is unclear whether the Department expects employers to use this form as provided or whether modifications are permitted. Certain other items in the Regs also remain unclear, and the Department has yet to issue anticipated further guidance. (A link to the form is provided below.)
Notable amplifications and clarifications: 1) “Applicant” means an individual who submits an application or other documentation for employment to an employer regardless of location.
2) “Employee” means any individual who performs at least two hours of work on average each week within the geographic boundaries of the City for an employer. Average week is determined by the last four complete weeks before the position is advertised.
3) An individual who lives in the City and performs work for an employer from home, including telecommuting, is an employee.
4) An individual who works from a home that is outside of the City is not an employee even if he/she works for a Los Angeles-based company, unless the individual also works at least two hours on average per week within the geographic boundaries of the City.
5) The LAFCIH applies to employees regardless of an employer’s designation of an employee as an independent contractor, and labeling a worker as an independent contractor is not conclusive for the purpose of the LAFCIH.
Criminal history: According to the Regs, “a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. In the State of California, an employer is prohibited from asking about any arrest information, unless it results in a conviction, and otherwise specified.” Note: the definition above cites California Labor Code §432.7(a)(1). The first sentence is correct; however, the second sentence is not, as that statute expressly allows inquiries about pending cases,stating that “nothing [in this section] shall prevent an employer from asking . . .about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.” Nevertheless, the Regs, in a section titled “Employer Assessment of Criminal History,” go on to state that “arrests cannot be considered in employment decisions.”
Other guidance items: The Regs amplify other definitions and aim to explain the various employer requirements, including, but not limited to, the application and interview procedure, assessment of criminal history, the “Fair Chance” process, notice and posting, recordkeeping, enforcement and exceptions. See above this table for links regarding this new guidance.