©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 65 If an employer intends to conduct a background check after a conditional offer of employment, the employer must provide written notice that includes (1) statement that the conditional offer of employment is contingent upon review of the individual’s criminal history; (2) a statement that the employer has good cause to conduct a review of the individual’s criminal history for the job position with supporting justification provided in writing; and (3) a complete list of all types of information, background, or history that will be reviewed by the employer (including verifying employment history, motor vehicle driving records, reference checks, credit history, licensing or credential verification, drug testing, or medical examination).30 When an applicant has a criminal history, the employer must first conduct an initial individualized assessment, and document that assessment. If the employer intends to rescind the conditional offer, the employer must provide the applicant or employee with a preliminary notice of adverse action. The notice must be sent by regular mail and email (if available) and, in addition to the information required under the state “ban the box” law, the notice must include a copy of the initial individualized assessment.31 The notice must have the timeline described below for applicants to respond in bold font and ALL CAPS.32 No final action may be taken for five business days. If the applicant or employee notifies the employer in writing within five business days that they dispute the accuracy of the criminal history information and are taking steps to obtain supporting evidence or that they need additional time to obtain evidence of rehabilitation or mitigating circumstances, the employer must provide an additional 10 business days.33 If an applicant or employee timely submits information, the employer must defer a decision for ten business days and conduct a second individualized assessment considering the factors listed in the ordinance. If the second decision is the same, the employer must follow a final notification process, including a copy of the second individualized assessment, the criminal history report, and other required content.34 The second notification must include notice of the right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs for violation of the ordinance or to pursue a complaint with the California Civil Rights Department for violation of the state law.35 If the employer provides the second and final notice more than 30 calendar days after a timely response to the preliminary notice, there is a presumed violation of the ordinance. The employer must rebut this presumption by providing a written explanation of acceptable reasons for the delay.36 The Los Angeles County Ordinance has a minimum four-year recordkeeping requirement.37 Violations of the ordinance are serious. The County’s Department of Consumer and Business Affairs may investigate and award penalties progressively from $5,000-$20,000 per violation (plus late-payment penalties and interest) as well as loss of County-issued licenses and contracts.38 Subject to certain exhaustion requirements, the ordinance provides for a private right of action for violations.39 4.2.4 Los Angeles City ordinance limiting inquiries into criminal history Under the Fair Chance Initiative for Hiring Ordinance, employers with ten or more employees in the City of Los Angeles may not procure a background screen for employment purposes or ask about criminal history until making a conditional offer of employment, contingent only on the results of the background screen.40 The LA Bureau of Contract Administration has an Individualized Assessment and Reassessment Form that employers should complete in making a preliminary decision to reject an applicant based on criminal history. The form addresses both individualized assessment and reassessment. Most of the form reflects an initial individualized assessment, to deliver with the pre-adverse action notice and any federal or state disclosures, such as the summary of rights, and a copy of the consumer report. If applicants provide additional information about their criminal record after receiving the pre-adverse package, the employer must complete the reassessment portion of the form and provide it with the final adverse action notice.41
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