The FCOE applies to work performed in the unincorporated areas of Los Angeles County.2 To determine if a workplace or job site falls within an unincorporated area of Los Angeles County, visit the Los Angeles County's Minimum Wage Resources website. For a comprehensive list of unincorporated areas of the county, click here.

Employers should be aware that, as of January 1, 2018, California law also “bans-the-box” and imposes requirements on how employers obtain and use criminal history. You are required to comply with both the FCOE and state law. For more information about the state law, see Restrictions on Obtaining Criminal History. Employers should also be aware that the city of Los Angeles has a Fair Chance Initiative for Hiring Ordinance, which applies to work performed in the city of Los Angeles.

The FCOE 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.3 The FCOE prohibits private employers in the county from inquiring into a job applicant’s criminal history before making a conditional offer of employment to the applicant.4

Employers 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 FCOE 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 FCOE, including the required workplace posting and other employer resources, at the Los Angeles County Department of Consumer and Business Affairs’ (DCBA) website or by contacting (800) 593-8222 or fairchance@dcba.lacounty.gov.

Employers Covered Under the Ordinance

The FCOE applies to employers who are:

• Located or doing business in the unincorporated areas of Los Angeles County; and
• Have five or more "employees."5

This five-person threshold includes owners, managers and supervisors if they meet the definition of an “employee.” An “employee” is a person who performs at least two hours of work on average each week (including telework) within the unincorporated areas of the county.6

Job placement, referral agencies and other employment agencies are also considered employers.

The FCOE establishes minimum requirements pertaining to the protection of applicants. You may provide more generous protection than the law requires.7

“Applicant” means an individual who submits an application or other document for employment with an employer, including an employee who is applying for a promotion with their current employer.8

Prohibited Inquiries Before a Conditional Offer

Similar to state law, the FCOE places restrictions on when and how you can obtain an applicant’s or existing employee’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.9
• You are prohibited from discussing an applicant’s criminal history until after the criminal background check is completed and a copy is provided to the applicant.10 This is more restrictive than state law.
• You cannot include statements in job advertisements, postings, applications or other materials that no persons with criminal history will be considered for hire, such as “No Felons” or “Must Have Clean Record."11
• You cannot reject an application or end an interview based on criminal history information that was learned or provided prematurely, nor can you do so if the applicant fails to provide such information.12

Under the FCOE, “inquire” means any direct or indirect conduct intended to gather criminal history information from or about an applicant, using any mode of communication.13

Under state law, you cannot consider criminal history prior to making a conditional offer of employment, even if the applicant voluntarily discloses it. Notably, the FCOE prohibits employers from discussing an applicant’s criminal history until after the criminal background check is completed and a copy is provided to the applicant.14

• To comply with both the FCOE and state law, you should not discuss criminal history with an applicant prior to making a conditional offer of employment, completing a criminal background check and providing the applicant with a copy of the criminal background check.

Under the FCOE, “conditional offer of employment” means your offer of employment to an applicant is “conditioned on completion of certain specified requirements or conditions, including, but not limited to, background checks, reference checks, training, certification, drug testing, or medical exams.”15

Under the FCOE, employers can never seek information about or base “adverse action” (discussed below) on certain “off-limits” inquiries, such as:

• A referral to or participation in a pre-trial or post-trial diversion program;
• Convictions that have been sealed, dismissed, expunged or statutorily eradicated;
• Convictions for most marijuana possession offenses more than two years old;
• Juvenile criminal history information;
• An arrest not resulting in a conviction;16
• Information related to an offense that is not a felony or misdemeanor, such as an infraction, except when the infraction is part of an applicant's driving record and driving is more than a minimal requirement for the job position;17
• A conviction stemming from conduct that has been decriminalized since the date of the conviction, including conduct related to the noncommercial use and cultivation of cannabis;18 or
• A conviction that is more than seven years old, unless the applicant will be working in roles involving the care, supervision or contact with minors, dependent adults or individuals aged 65 and older, or in positions related to the administration of public funds or benefits, particularly where the conviction is relevant to the job's responsibilities.19

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 and must follow the requirements outlined in the FCOE.20

The above list of off-limits inquiries may include exceptions for jobs where the employer is required by law to obtain the information, as well as for other jobs such as peace officers, health care employees, and people with access to drugs and medication.21 For more information, see Restrictions on Obtaining Criminal History.

Job Advertisement Disclosures

Within all solicitations or advertisements seeking applicants for employment, covered employers who plan on reviewing an applicant’s criminal history information must provide a notice of the following:

• A statement that “qualified applicants with arrest or conviction records will be considered for employment in accordance with the Los Angeles County Fair Chance Ordinance and the California Fair Chance Act.”
• A statement that the employer has good cause to conduct a criminal history review for the specific job position, with supporting justification provided in writing.
• Specifically, employers must indicate which of these duties may reasonably have a direct, adverse and negative relationship with an individual's criminal history that could potentially result in the withdrawal of the conditional offer of employment.
• General statements to justify a criminal history check, such as for “safety concerns” do not meet this requirement and require more detailed justification.
• Discussion of criminal history can only occur after the criminal background check is completed and a copy is provided to the applicant.22

If employers are required by local, state or federal law or regulation to restrict or prohibit the hiring of individuals with certain specified criminal history for the job position, they must specify in all solicitations or advertisements seeking applicants for employment any laws or regulations that impose restrictions or prohibitions for employment due to criminal history.23

Conditional Offer Requirements

When making a conditional offer of employment, if you intend to review an applicant's criminal history, the FCOE requires that you provide written notice which includes the following:

• A statement that the conditional offer of employment is contingent upon the review of the applicant’s criminal history;24
• A statement that the employer has “good cause” to conduct a review of criminal history for the specific job position, with supporting justification provided in writing;25 and
• A complete list of all the types of information that will be reviewed must be provided, including education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing or medical examinations.26

An employer establishes “good cause” if it can demonstrate any of the following:

• The employer faces a significant risk to its business operations or reputation unless a review of criminal history is conducted for the specific job position; or
• A review of criminal history is necessary for the specific job position due to specific concerns regarding the safety of — or risk of harm or harassment to — the employer's staff, employees, contractors, vendors, associates, clients, customers or the general public.27

A general statement that the review is due to "safety concerns" without further justification is insufficient.28

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 Restrictions on Obtaining Criminal History. If there is a conflict, state and federal requirements supersede the FCOE’s requirements. If you have questions about federal or state law applicability, 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.

An employer cannot rescind or withdraw a conditional offer of employment solely because of a delay in receiving a criminal background check report, unless the employer can demonstrate that continuing to hold the job position open would cause an undue burden on business operations, and at least 10 business days have passed since the report was requested. If the offer is rescinded due to this delay, the employer must inform the applicant in the preliminary notice of adverse action (discussed below), explaining why the delay creates an undue burden, and must follow all other notice requirements under the FCOE. 29

Employer Assessment of Criminal History Information

Following the conditional offer of employment, you must provide a copy of the criminal background check report to the applicant before discussing any criminal history information or requesting further criminal history details from the applicant.30

You may not take adverse action against an applicant, such as withdrawing a conditional offer of employment or refusing to employ an applicant, based on an applicant’s criminal history unless you have conducted a written “initial individualized assessment.”31 Adverse action may also include employment decisions relating to reassignment, training, discipline, lay-off and termination.32

An “initial individualized assessment” is an employer's first documented, written evaluation of whether an applicant's criminal history directly and negatively impacts their ability to perform the essential duties or responsibilities of the employment position. This assessment determines if denying the applicant the position or taking adverse action against the employee is justified.33

In performing the initial individualized assessment, you must consider the factors identified in the FCOE. These factors include:

• The nature and gravity of the offense or conduct, including whether the harm was to property or people, the degree or severity of the harm or offense, the age of the applicant at the time, and the permanence of the harm or offense;
• The time that has passed since the offense, conduct and completion of the sentence; and
• The nature of the job held or sought, including consideration of the specific duties of the job, the potential for a similar offense to occur in the position and whether circumstances that led to the conduct or conviction are likely to recur in the employment position.34

If the applicant voluntarily provides you with any “evidence of rehabilitation or mitigating circumstances” before or during the initial individualized assessment, that evidence must also be considered as part of the initial individualized assessment.35 Evidence of rehabilitation or mitigating circumstances is discussed in more detail below.

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

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

Fair Chance Process

Both the FCOE and state law contain specific notice requirements that must be met if you plan to deny an applicant a job because of conviction history. Sometimes referred to as a “fair chance” process, it kicks in after the individualized assessment occurs. See Restrictions on Obtaining Criminal History for more information.

Preliminary Notice of Adverse Action

Under the FCOE, after performing the initial individualized assessment, if you intend to withdraw or rescind a conditional offer of employment or take any other adverse action, you must provide the applicant with a “preliminary notice of adverse action.”36

The preliminary notice of adverse action must be sent to the applicant via both regular mail and email — if an email address is available — and must include the following:

• Notice that the employer intends to withdraw or rescind the conditional offer of employment or take other adverse action due to the applicant's criminal history;
• An explanation of the applicant's right to respond to the preliminary notice of adverse action before the decision becomes final, including the waiting time periods and timelines to respond, written in bold, underlined or all-capital letters;
• A statement that the applicant’s response may include evidence challenging the accuracy of the criminal background check report or other criminal history information, or voluntary submission of evidence of rehabilitation or mitigating circumstances, unless the position is one where the employer is legally required to exclude or restrict individuals with certain criminal history;
• A copy of the initial individualized assessment;
• Notice of the disqualifying conviction(s) that are the basis for the intended adverse action; and
• A copy of the criminal background check report(s) obtained by the employer, if any, and any other information or documentation related to the applicant's criminal history obtained by the employer, including but not limited to information from internet searches, court records, news articles and/or social media content.37

You must give the applicant at least five business days to respond to the preliminary notice of adverse action before you can finalize the decision to withdraw the conditional offer of employment or take other adverse action. If the applicant notifies you in writing within those five business days that they are disputing the accuracy of the criminal background check report or need more time to gather evidence of rehabilitation or mitigating circumstances, they must be given an additional 10 business days to respond.38

If no response is received, you must wait at least five business days after the applicant receives the preliminary notice of adverse action before taking any adverse action or filling the position.39

Upon request, the applicant may present “evidence of rehabilitation or mitigating circumstances” orally, via in-person, virtual or telephone contact, within five business days of receiving the preliminary notice. The meeting must occur within 10 business days of the request. This option does not apply to positions where the law requires the exclusion of individuals with certain criminal histories.40

Evidence of Rehabilitation or Mitigating Circumstances

Evidence of rehabilitation or mitigating circumstances may include:

• Compliance with parole or probation terms, excluding noncompliance due to inability to pay fines, fees or restitution due to indigence.
• Employment history before and after the offense.
• The age of the person at the time of the conviction.
• Employer recommendations, particularly regarding post-conviction employment.
• Educational or vocational training obtained after the conviction, including training during incarceration.
• Completion of or participation in rehabilitative programs, such as alcohol or drug treatment.
• Involvement in self-improvement efforts, including job training, counseling or community service.
• Supporting documents like letters of recommendation from community organizations, counselors, case managers or others who have observed the individual since their conviction.
• Any additional mitigating factors, such as explanations of how past events or conditions (e.g., homelessness, trauma, abuse or untreated substance abuse) contributed to the criminal history.

Second Individualized Assessment

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 “second individualized assessment” in writing before making a final decision or taking adverse action.41 The assessment must consider the following factors:

• The nature and gravity of the offense or conduct, including whether the harm was to property or people, the severity of the harm or offense, the age of the applicant or employee at the time, and the permanence of the harm or offense;
• The time that has passed since the offense or conduct, or the completion of the sentence;
• The nature of the job position sought or held, including the specific duties, the likelihood of the same or similar offense occurring in the position, and whether circumstances leading to the conduct might recur in the role;
• Any evidence of rehabilitation or mitigating circumstances, whether provided in writing or orally; and
• Any documents disputing the accuracy of the criminal background check report or criminal history information, or documents providing an explanation regarding the criminal history.42

Final Notice of Adverse Action

After performing the second individualized assessment, if you decide to withdraw the conditional offer of employment or take any other adverse action, you must notify the applicant in writing via both regular mail and email (if available).43 This communication is referred to as the “final notice of adverse action” and must include the following:

• A notice that you have made a final decision to withdraw the conditional offer of employment or take adverse action against the applicant;
• A copy of the second individualized assessment;
• Notice of the disqualifying conviction(s) that are the basis for the final adverse action;
• Information about any existing procedure for the applicant or employee to challenge the decision or request reconsideration; and
• Notice of the applicant's right to file a complaint with the Los Angeles County Department of Consumer and Business Affairs (DCBA) for violations of the county's fair chance ordinance, and with California’s Civil Rights Department for violations of the Fair Chance Act.44

If you provide the final notice of adverse action more than 30 calendar days after the applicant responded to the preliminary notice of adverse action, it will be presumed that your delay was untimely and in violation of the FCOE. To rebut this presumption, you must include a written explanation in the final notice of adverse action, justifying why the final decision was not made within 30 days. This explanation may include circumstances such as a business or personal emergency, or delays outside of your control.45

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

Exceptions

The FCOE’s disclosures in job advertisements, conditional offer requirements and prohibitions on inquiring about criminal history for specified job positions do not apply to:

• Positions where state, federal or local law requires criminal background checks, inquiry into criminal history or employment restrictions based on criminal history;
• Positions where state, federal or local law prohibits employing individuals with specific criminal history;
• Positions requiring the applicant to possess or use a firearm during their employment;
• Positions as a farm labor contractor, as defined in section 685 of the California Labor Code; or
• Positions designated by the employer to participate in government programs that encourage the employment of individuals with criminal history, or positions where "lived experience" in incarceration or the criminal justice system is a desired qualification or job requirement.46

However, employers must still follow the fair chance processes, including written individualized assessments and notices, for these positions.47

State law has broader exceptions. Employers with questions about exceptions to the FCOE and/or the state law should consult counsel.

Timelines Related to Mail and Email Delivery

For all FCOE notices that an employer is required to mail, the following timelines apply:

• If the notice is sent without delivery confirmation, it's considered received five calendar days after being mailed to a California address, 10 calendar days after being mailed to an address outside of California, and 20 calendar days after being mailed to an address outside of the United States.
• If the notice is sent via email, it's considered received two business days after being sent. However, the applicant's timeline to respond is based on the date the notice was mailed by the employer.48

Any applicant response under the FCOE follows the same timelines for mail and email. The applicant may choose to send their response by either mail or email.49

Posting, Notice and Recordkeeping Requirements

The FCOE contains posting, notice and recordkeeping requirements.50 You will need to pay close attention to these obligations.

You must post a notice to inform about the provisions of the FCOE in a conspicuous place at any workplace or job site in the unincorporated areas of the county that are frequently visited by employees or applicants. 51 The county has indicated it will produce a notice for employers to use.

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 the unincorporated areas of the county. The notice must be available in English and any other languages spoken by at least 10 percent of your workforce.52

Employers must keep and preserve all records, data, and documents related to the FCOE for at least four years after receiving an applicant's employment application. This includes, but is not limited to, job postings, employment applications, individualized assessments, notices, conditional offers, rescission or withdrawal letters, and any related electronic or written correspondence between the employer, applicant or any third party.53 The DBCA has authority to access said records and to investigate whether any employer has violated the FCOE.54

Enforcement

The DCBA enforces the FCOE. An applicant or employee alleging that an employer has violated the FCOE may report the alleged violation to the DCBA within one year of the alleged violation. The DCBA may conduct investigations and take administrative action to enforce the FCOE.55

If the DBCA determines that an employer has violated the FCOE, the DCBA may issue a written notice to the employer that requires the employer to immediately cure the violation.56 The DCBA may also issue an administrative penalty of up to $5,000 for the first violation, up to $10,000 for the second violation and up to $20,000 for the third and subsequent violations.57 The DCBA will assess the amount civil penalties issued against an employer based on the following factors:

• The severity of the violation;
• The existence of prior or contemporaneous violations the FCOE;
• The employer's size, including both the total number of employees and business revenue; and
• Whether or not the employer knew or should have known about the FCOE.58

Aggrieved applicants or employees who wish to file a civil lawsuit for any violation of the FCOE must first report the alleged violation to the DCBA and allow the DCBA 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.59

Retaliation

The FCOE protects employees from retaliation for exercising any rights under the FCOE. For example, employees have the right to file formal complaints of non-compliance, to cooperate in any investigation or prosecution of any alleged violation of the FCOE, or participate in proceedings related to the FCOE.60

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1. Los Angeles County Code sec. 8.300.020