New Los Angeles County Equal Opportunity Ordinance Imposes Obligations on Employers

Beginning September 3, 2024, employers will have to comply with new requirements if they wish to consider criminal history in hiring or promotion decisions for positions that will perform work in an unincorporated area of Los Angeles County. The requirements — imposed by the county’s equal opportunity ordinance — will be much more burdensome for employers than those under the statewide equal opportunity law or the city of Los Angeles’ equal opportunity ordinance.

Blanket

The county’s new ordinance covers all employers located or doing business in an unincorporated area of Los Angeles County that employ five or more employees, regardless of where the employees are located. Covered employers include all for-profit businesses, nonprofit organizations, and temporary, staffing and referral agencies.

All external applicants for jobs and internal applicants for promotions or other positions they do not currently hold with a covered employer are entitled to the protections of the order as long as the position they seek will involve performing, on average, two hours of work per week or more in an unincorporated area of Los Angeles County. These employees are covered by the ordinance whether they work full-time or part-time, on a fixed-term or indefinite, short-term, temporary or seasonal basis.

The Scope of Unincorporated Areas in Los Angeles County

Unincorporated areas or communities are those that do not have their own local government, such as a city council. More than 65% of the county’s geographic area is unincorporated. Examples of unincorporated parts of the county include Agoura, Altadena, Baldwin Hills, East Los Angeles, East Pasadena, East San Gabriel, La Crescenta, Marina del Rey, Rancho Dominguez, Universal City, Valencia, and Walnut Park.

Job Offer Requirements

The order prohibits employers from preventing or discouraging people with criminal records from applying for jobs.

Additionally, in job postings, solicitations, announcements and advertisements, employers must:

– Include language affirmatively stating that qualified applicants with a criminal record or a criminal record will be considered in accordance with the ordinance and the California Fair Opportunity Act; and,

– Do not include statements that indicate that candidates with criminal backgrounds should not apply, such as “No criminal” and “No convictions.”

Identification of “material tasks of the position” and individualized assessment by the employer

Under the order, whenever a covered employer intends to consider criminal history after making a conditional offer of employment, the employer must include in all job applications, bulletins, postings, announcements and advertisements a list of “all significant duties of the job” to which the employer “reasonably believes” the criminal history may have a “direct, adverse and negative relationship” that could result in the withdrawal of the conditional offer of employment.

As a result of this requirement, the employer must determine: Before they post a position as available or start a search – if they wish to be able to take into account the criminal history of candidates when making hiring or promotion decisions. In this case, the employer must carry out the necessary analysis to identify the “essential functions of the position” for the purposes of the order and include them in job offers, etc.

If, after making a conditional offer of employment, an employer reviews the applicant’s criminal history and intends to withdraw the offer “solely or in part” because of the applicant’s criminal history, the order requires the employer to first conduct an “individualized initial assessment” to determine whether the individual’s criminal history has a “direct, adverse and negative” impact on the applicant’s ability to perform the duties or responsibilities of the position, such that denial of employment to the individual is justified. The assessment must be documented in writing. The order sets out the factors to be considered in the assessment.

The employee’s right of reply

The order further requires that before an employer can legally withdraw a conditional job offer based on the person’s criminal history, it must give the applicant written notice of its intention to do so and the notice must include:

– a copy of the employer’s initial individual assessment;

– a copy of any additional information report reviewed;

– notice of the disqualifying conviction(s); and,

– an explanation of the applicant’s right to respond to the employer’s intention to withdraw the offer before the offer is withdrawn.

After giving this notice to the applicant, the employer must give the applicant at least five business days to respond by (a) denying the accuracy of the criminal history information relied on by the employer; (b) providing evidence of rehabilitation or mitigating circumstances; or (c) requesting more time to gather evidence of rehabilitation or mitigating circumstances.

The order prohibits an employer from withdrawing an offer before the five-day deadline has expired or, if the candidate responds as authorized and within the time limit, from withdrawing the offer without first taking the additional steps summarized below.

Second individual assessment

If the employee responds to the employer within the time limit and with one of the permitted responses, the employer “must consider all information and documentation, whether written or oral, submitted in a timely manner” by the employee and conduct a second individualized assessment documented in writing.

If, after conducting the second evaluation, the employer’s final decision is to withdraw the conditional offer, it must notify the employee in writing. The notice must include:

– a copy of the employer’s second individual assessment;

– a notice of the conviction(s) justifying the final decision; and,

– a clear notice of the applicant’s right to file complaints with the California Department of Civil Rights (formerly known as the California Department of Fair Employment and Housing) for violations of the state’s Equal Opportunity Act and with the Los Angeles County Department of Consumer and Business Affairs (“DCBA”) for violations of the Order.

Law enforcement

The order allows individuals to sue employers for alleged violations. If successful, individuals can be awarded reinstatement, back pay, other damages, penalties set out in the order, and attorneys’ fees and costs.

In addition, the DCBA is authorized to receive complaints of violations, investigate them, issue subpoenas to collect evidence, order employers to remedy violations, impose penalties on employers of $5,000 to $20,000 per violation, and award other relief.

Fence

This article is not an exhaustive description of the requirements set forth in the new Los Angeles County Equal Opportunity Ordinance. The ordinance includes other important obligations, deadlines, and details with which employers should be familiar, including posting requirements, a recordkeeping requirement, a provision making retaliation unlawful, and more. Affected employers who do business in unincorporated areas of Los Angeles County or who may attract candidates from such areas should carefully prepare before conducting any searches, internal promotions, or similar personnel actions.

Resources

– The Los Angeles County Equal Opportunity Ordinance can be viewed HERE.

– Frequently asked questions published by the county can be found HERE.

– A list of unincorporated areas in Los Angeles County can be found HERE.

(See source.)