Los Angeles recently became the latest major city to pass a city ordinance that “bans the box” regarding inquiries into job applicants’ criminal histories from initial employment applications. The ordinance is significant in that it specifically regulates private sector employers with 10 or more employees. Under the ordinance, private employers will be prohibited from asking about a job applicant’s criminal history until after a conditional offer of employment has been extended to the applicant. “Criminal history” is broadly defined as “information regarding one or more convictions, transmitted orally or in writing or by any other means, and obtained from any source, including, but not limited to, the individual to whom the information pertains and a Criminal History Report.”
The ordinance includes four exceptions to the prohibition encompassing situations where:
(1) “The Employer is required by law to obtain information regarding a Conviction of an Applicant”;
(2) “The Applicant would be required to possess or use a firearm in the course of his or her Employment”;
(3) “An individual who has been convicted of a crime is prohibited by law from holding the position sought by the Applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation”; and
(4) “An Employer is prohibited by law from hiring an Applicant who has been convicted of a crime.”
Applicants can bring a civil action against employers for violation of the ordinance for civil penalties that vary based on the number of prior offenses.
The ordinance, known as the “Los Angeles Fair Chance Initiative for Hiring (Ban the Box),” was signed into law by Mayor Eric Garcetti on December 9. The ordinance will become effective on January 22, 2017.
This ordinance is consistent with recent increases in legislative scrutiny of employment application practices, with many states and localities having enacted similar legislation focusing on an applicant’s criminal history at the initial application stage. Troutman Sanders will continue to monitor related legislative developments concerning employment background screening and employee hiring.