In addition to changes to various state and federal employment laws, Los Angeles Metropolitan Area employers will face some additional challenges in 2017 — a new restriction on investigating job applicants’ criminal records as well as municipal minimum- wage increases.
Ban the Box — Criminal Convictions
“Ban the box” refers to the movement to restrict employers from inquiring about applicants’ criminal convictions. The term refers to the proverbial checkbox by which an applicant is asked about prior convictions.
Employers are already prohibited from asking about arrests that did not result in conviction. On Jan. 22, 2017, a strict version of ban-the-box takes effect in the city of Los Angeles. It prohibits any inquiry — direct or indirect — about an applicant’s convictions until the employer has made an offer of employment. The offer may be conditioned on the results of a criminal-history inquiry, but the employer must provide a “Fair Chance Process” before withdrawing the offer.
The ordinance governs every private employer of 10 or more (counting owners) “located or doing business in the City.” Employment is “any occupation, vocation, job or work performed in the City” and includes “contracted work” and “any form of vocational or educational training with or without pay.”
The ordinance targets two types of inquiry about an applicant’s felony or misdemeanor convictions. An employment application may not inquire about convictions, and an employer may not, by any other means, inquire about or require disclosure of convictions until a conditional offer of employment has been made. Inquire means “any direct or indirect conduct intended to gather [conviction] information … using any mode of communication.”
The “Fair Chance Process” itself is incredibly burdensome. The offer may be conditioned on an assessment of the applicant’s conviction history, if any, in relation to the duties and responsibilities of the job. Aft er making the offer, however, the employer may not withdraw or cancel the offer or fail to hire the applicant unless it prepares a written assessment linking the conviction history with risks inherent in the duties of the position. The employer must at a minimum consider the factors identified by the United States Equal Employment Opportunity Commission and those that may be promulgated in city regulations. The employer must provide the assessment to the applicant, who has five business days to respond. The employer must then make a written reassessment based on any response. If it maintains its initial decision, the employer must provide the applicant a copy of the reassessment.
The ordinance also requires that all advertisements seeking applicants for employment must state that the employer will consider qualified applicants with convictions. Employers must also post a notice informing applicants of the ordinance at every location in the city under the employer’s control and visited by employment applicants, and send a copy of the notice to each labor union or employee representative with which it has any agreement or understanding regarding employees in the city.
There are four limited exceptions: where the employer is required by law to obtain information regarding an applicant’s conviction; the applicant would be required to possess or use a firearm in the course of employment; the employer is prohibited by law from hiring an applicant with a criminal conviction; and where a person convicted of a crime is prohibited by law from holding the position sought.
An applicant or employee may bring a civil action for violation of the ordinance to recover penalties, damages and equitable relief. Administrative remedies must be pursued first (within one year) and an action may be filed within one year aft er the administrative process concludes.
No penalties will be assessed before July 1, 2017. Until then, only written warnings will be issued for violations. Thereaft er, penalties for violating the notice requirement or the document-retention requirement (three years from receipt of an employment application) are up to $500 per violation. Penalties for all other violations are up to $500 for the first violation, $1,000 for the second and $2,000 for each subsequent violation.
Minimum Wage Increases
The minimum hourly wage in California rose Jan. 1, 2017, to $10.50 for employers of 26 or more and $10 for smaller employers. It will rise again, to $11/$10.50, Jan. 1, 2018.
A larger increase will come sooner in Los Angeles County, and the cities of Los Angeles, Pasadena, Santa Monica and Malibu, where the minimum wage will rise July 1 to $12/$10.50.
The Los Angeles Minimum Wage Ordinance schedules stepped increases each year through 2020, when the rate will reach $15 for employers of 26 or more. Smaller employers will catch up in 2021. Thereaft er, the minimum wage will increase each July 1, based on the Consumer Price Index. Daniel Ho
