64 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com decision must notify the applicant of rights to pursue the matter further.20 Employers can inquire about an applicant’s “particular conviction” under limited circumstances, mostly involving cases where a law requires consideration of criminal history.21 In 2023, the amended regulations also expanded the definitions of “employer” and “applicant.” The amended definition of “employer” now includes direct and joint employers, entities assessing conviction history for employers, staffing agencies, and entities making selections from a pool or availability list such as a hiring hall.22 The amended definition of "applicant" now includes employees who commenced employment after receiving a conditional offer, current employees seeking different positions, and employees affected by changes in ownership, management, policy, or practice.23 4.2.2 San Francisco ordinance limiting inquiries into criminal history Under the “Fair Chance Ordinance” (designed to give rehabilitating ex-offenders a “fair chance” at employment), San Francisco employers of five or more employees must not ask job applicants about certain arrests or criminal convictions at all, and must not ask about other conviction history until after making a conditional offer of employment.24 San Francisco employers also must not inquire about or consider infractions, convictions that are more than seven years old (measured from date of sentencing), or any conviction for an offense that arises out of conduct that has since been decriminalized (measured from date of sentencing). Further, any criminal conviction, in order to disqualify a job candidate, must bear a “direct relationship” to the position the candidate is seeking. That is, the conviction must have a “direct and negative bearing on that person’s ability to perform duties or responsibilities necessarily related to the employment position.” The ordinance also imposes special notice, posting, and recordkeeping requirements on covered employers.25 In 2018, San Francisco amended its Fair Chance Ordinance to align it, in some respects, with California’s banthe-box law. For violations occurring after October 1, 2018, employers are subject to increased penalties for noncompliance: $500 for the first violation; $1,000 for the second violation; and $2,000 for further violations (under the initial Ordinance, the maximum penalty was $50). The amended Ordinance grants aggrieved individuals a right to file a civil action, if they first file a complaint with the OLSE and exhaust their administrative remedies. San Francisco bars covered employers from considering convictions that are more than seven years old (measured from the date of sentencing) and infractions. The Board further amended the Ordinance to add a new category of “off limits” information: convictions that arose out of conduct that has since been decriminalized. 4.2.3 Los Angeles County ordinance limiting inquiries into criminal history Effective September 3, 2024, Los Angeles County adopted its Fair Chance Ordinance for Employers.26 Employers with five or more employees located in the unincorporated areas of Los Angeles County may not procure a background screen for employment purposes or ask about criminal history until making a conditional offer of employment. “Employer” includes labor organizations, nonprofit organizations, temporary and referral agencies, and entities assessing criminal histories for employers.27 The Los Angeles County Ordinance contains several unique requirements that go well beyond other federal state and local laws governing criminal history checks. The Los Angeles County law requires job solicitations, bulletins, postings, announcements, and advertisements to specify any laws that impose restrictions or prohibit the hiring of individuals with certain criminal histories.28 It includes a long list of types of criminal histories which cannot be disqualifying. Where a criminal history might result in a rescinded job offer, employers must include in any job solicitations, bulletins, postings, announcements, or advertisements a list of all material job duties of the specific job for which the employer reasonably believes that criminal history “may have a direct, adverse and negative relationship.”29
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