As of January 1, 2018, California law also “bans-the-box” and imposes requirements on how employers obtain and use criminal history (the state law). You are required to comply with both the FCIHO and state law. For more information about the state law, see Obtaining Criminal History.

The FCIHO applies to work performed in the city of Los Angeles. The FCIHO covers not only regular employees, but also part-time workers, contract workers, temporary or seasonal workers, contingent workers and workers from a temporary or employment agency.2 The FCIHO prohibits private employers in the city of Los Angeles from inquiring into a job applicant’s criminal history before making a conditional offer of employment to the applicant.

Employers in may want to use one of the following job applications

• Employment Application - Long Form
• Employment Application - Long Form - Spanish
• Employment Application - Short Form
• Employment Application - Short Form - Spanish

Neither the FCIHO nor the state law limit your ability to choose the most qualified and appropriate candidate among the applicants for a particular job. Neither require you to hire or give preference to an unqualified individual with an arrest or conviction record.

You can find more information regarding the FCIHO at the city of Los Angeles website. You can also contact the city of Los Angeles Bureau of Contract Administration (the BCA) at (213) 847-1922.

Employers Covered Under the Ordinance

The FCIHO applies to employers who are:

• Located or doing business in the city of Los Angeles; and
• Have 10 or more "employees."3

This 10-person threshold includes owners, managers, and supervisors if they meet the definition of an “employee.” An “employee” is means a person who performs at least two hours of work on average each week within the geographic boundaries of the city of Los Angeles and is entitled to minimum wage under California’s minimum wage law.

• The number of hours on average each week an employee works in the city is determined by the month before the position is advertised.
• Time spent in the city for purposes of traveling through the city with no employment related stops except for refueling or personal needs is not counted towards the two hours.
• Individuals working from home outside the city are not counted, unless they also work on average two hours per week in the city. Individuals working from home within the city for an employer located outside the city are counted.

• If you are a covered employer, the FCIHO’s requirements apply to applicants for employment within the city.4

Job placement, referral agencies and other employment agencies are also considered employers. The FCIHO establishes minimum requirements pertaining to the protection of applicants. You may provide more generous protection than the law requires.

Restrictions on Obtaining Criminal History

The FCIHO and the state law place restrictions on when and how you can obtain an applicant’s criminal history.5

• You cannot include on any employment application any question that seeks the disclosure of an applicant’s criminal history.
• You cannot inquire about or require disclosure of an applicant’s criminal history unless and until you have made a conditional offer of employment to the applicant.

Under the FCIHO, “inquire” means any direct or indirect conduct intended to gather criminal history information from or about an applicant, using any mode of communication. This includes, but is not limited to, application forms, interviews and background check reports.6

Under the state law, you cannot consider criminal history prior to making a conditional offer of employment, even if the applicant voluntarily discloses it. To comply with both the FCIHO and the state law, you should not consider criminal history of any applicant prior to making a conditional offer of employment.

Under the FCIHO, “conditional offer of employment” means your offer of employment to an applicant is “conditioned only on an assessment of the applicant’s criminal history, if any, and the duties and responsibilities of the employment position.”7

Under the state law, there are certain “off-limits” inquiries. For more information, see, Obtaining Criminal History. Employers can never seek information about:

• A referral to or participation in a pre-trial or post-trial diversion program;
• Convictions that have been sealed, dismissed, expunged or statutorily eradicated;
• Juvenile convictions, subject to certain exceptions for health care facilities; or
• An arrest not resulting in a conviction, subject to certain exceptions for health care facilities.

Employers may ask about arrests for which the applicant is out on bail or on their own recognizance pending trial; however, inquiries must not be made before a conditional offer of employment.

Obtaining Criminal History Reports

Once you have made a conditional offer of employment to an applicant, you may obtain a criminal history report.

• You must continue to follow state and federal law regarding obtaining criminal history and conducting criminal background checks. State and federal law mandate criminal background checks in certain industries. For more information, see Obtaining Criminal History. If there is a conflict, state and federal requirements supersede the FCIHO’s requirements. If you have questions about the applicability of federal or state law, please consult with legal counsel.

Before obtaining a copy of any background check report, you must also comply with all federal and state notice requirements, such as those under the federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA). For more information, see Obtaining Investigative Consumer Reports.

Employer Assessment of Criminal History Information

You may not take adverse action against an applicant, such as withdrawing a conditional offer of employment or refusing or failing to employ an applicant, based on an applicant’s criminal history unless you have performed a “written assessment” and provided the applicant a “Fair Chance Process.”9

Written Assessment

A written assessment must effectively link the specific aspects of the applicant’s criminal history with risks inherent in the duties of the position sought by the applicant. In performing the written assessment, you must consider the factors identified by the United State Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (the Enforcement Guidance). These factors include:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.

For more information, see EEOC Guidance on Criminal Background Checks.

The city offers a Fair Chance Initiative for Hiring Ordinance (FCIHO) Individual Assessment and Reassessment Form that employers may use when preparing an individual assessment.

Fair Chance Process

The “Fair Chance Process” means an opportunity for an applicant to provide information or documentation to you regarding the accuracy of his or her criminal history report or other information that should be considered before you take adverse action against the applicant based on his or her criminal history, such as evidence or rehabilitation or other mitigating factors.10

As part of the Fair Chance Process, you must provide the applicant written notification of the proposed adverse action, a copy of the written assessment and any other information or documentation supporting the proposed adverse action.

The state law requires an individualized assessment, but does not require that it be in writing. Employers subject to the FCIHO should follow the stricter local standard, prepare a written assessment, and provide a copy to the applicant as required by the FCIHO.

You must also comply with the FCRA and ICRAA notice requirements. For more information, see the Obtaining Investigative Consumer Reports page.

You must give the applicant at least five business days to complete the Fair Chance Process; you may not finalize the adverse action or fill the position sought by the applicant during this period.

The city offers a preliminary Notice to Rescind Employment Offer Sample Letter that employers may use.

If the applicant notifies you, within the initial time period, that the applicant disputes the accuracy of the conviction and is taking steps to provide supporting information, the state law requires you to give the applicant an additional five business days to submit this information. Employers must follow the stricter state law standard and provide the additional five business days in such situations.

If the applicant provides you with information or documentation as part of the Fair Chance Process, you must consider the information or documentation and perform a written reassessment of the proposed adverse action. If you take adverse action against the applicant after performing the reassessment, you must notify the applicant of the decision and provide the applicant a copy of the written reassessment.11

The state law requires you to reconsider your preliminary decision in light of the information provided, but does not require a written reassessment. Employers subject to the FCIHO must follow the stricter local standard, prepare a written reassessment, and provide a copy to applicants as required by the FCIHO.

The state law requires your final notice to the applicant include any existing procedure you have for challenging the decision and the applicant’s right to file a complaint with the Department of Fair Employment and Housing. You must follow the stricter state standard and include this information in your final notice.

Exceptions

The FCIHO’s prohibitions on inquiring about criminal history and the individual assessment and Fair Chance Process requirements do not apply if:

• An employer is required by law to obtain information regarding a conviction of an applicant.
• The applicant would be required to possess or use a firearm in the course of his or her employment.
• 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.
• An employer is prohibited by law from hiring an applicant who has been convicted of a crime.12

The state law has similar exceptions. Employers with questions about exceptions to the FCIHO and/or the state law should consult counsel.

Posting, Notice and Recordkeeping Requirements

The FCIHO contains posting, notice, and recordkeeping requirements. You will need to pay close attention to these obligations.

You must state in all solicitations or advertisements seeking applicants for employment that you will consider qualified applicants with criminal histories in a manner consistent with the requirements of the FCIHO.13

You must post a notice to inform applicants of the provisions of the FCIHO in a conspicuous place at any workplace or job site in the city of Los Angeles under your control and visited by applicants.

• Los Angeles Labor Law Posters

You must also send a copy of the notice to each labor union or representative of workers with which you have a collective bargaining agreement or other agreement or understanding that applies to employees in Los Angeles.14

To comply with the FCIHO, you must maintain records and documents related to applicants’ employment applications, and any written assessments or written reassessments performed, for a period of three years following receipt of an applicant’s employment applications. You must allow the BCA access to the records and documents upon request.15

Enforcement

The BCA enforces the FCIHO.16 An applicant or employee alleging that an employer has violated the FCIHO may report the alleged violation to the BCA within one year of the alleged violation. The BCA may conduct investigations and take administrative action to enforce the FCIHO.

If the BCA determines that an employer has violated the FCIHO, the BCA may issue a written notice to the employer that requires the employer to immediately cure the violation. The BCA may also issue an administrative penalty of up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for the third and subsequent violations. For violations of the FCIHO’s notice and posting or recordkeeping requirements, penalties and fines are up to $500 per violation.17

Aggrieved applicants or employees who wish to file a civil lawsuit for any violation of the FCIHO must first report the alleged violation to the BCA and allow the BCA to complete its enforcement process. The applicant or employee has one year from the completion of the enforcement process or issuance of a hearing officer’s decision to file a civil lawsuit. If successful, the applicant or employee will be awarded the penalties described above.18

Retaliation

The FCIHO protects employees from retaliation for exercising any rights under the FCIHO19 For example, employees have the right to file formal complaints of non-compliance, oppose any practices prohibited by the FCIHO, or participate in proceedings related to the FCIHO.

1. Los Angeles Muni. Code art. 9

2. Los Angeles Muni. Code sec. 189.01(K)

3. Los Angeles Mun. Code sec. 189.01J

4. Los Angeles Mun. Code sec. 189.01J; Rule and Regulations Implementing the FCIHO, January 22, 2017, Regulation 1; Los Angeles FCIHO Frequently Asked Questions, March, 2017, FAQ No. 3-5.

5. Los Angeles Mun. Code sec. 189.02

6. Los Angeles Mun. Code sec 189.01M

7. Los Angeles Mun. Code sec. 189.01D

8. Los Angeles Mun. Code sec. 189.07

9. Los Angeles Mun. Code sec. 189.03

10. Los Angeles Mun. Code sec. 189.01L; Rules and Regulations Implementing the FCIHO, January 22, 2017, Regulation 2C

11. Los Angeles Mun. Code sec. 189.03B

12. Los Angeles Mun. Code. Sec. 189.07

13. Los Angeles Mun. Code sec. 189.04A

14. Los Angeles Mun. Code sec. 189.04B

15. Los Angeles Mun. Code sec. 189.06

16. Los Angeles Mun. Code sec. 189.09

17. Los Angeles Muni. Code sec 189.10A

18. Los Angeles Mun. Code sec. 189.08

19. Los Angeles Mun. Code sec. 189.05