The state of California can be a challenge for employers who want to conduct background checks for employment purposes. The state has restrictions on using credit checks for employment decisions which have very restrictive exceptions.
The state also has a process for using criminal history information for employment decisions which includes requirements for notifying applicants in writing of which parts of the background report may be considered for the employment decision. Employers have to give applicants details on how the information applies to the job and the process used to make any decisions based on the information.
There are also restrictions on information that can be included in job postings and advertisements.
It is not just the state that has specific requirements. Los Angeles County has enacted a Fair Chance Ordinance for Employers (FCOE) that went into effect on September 3rd of this year. The county ordinance is similar to the state law, but the county has become more restrictive than the state, specifically in unincorporated Los Angeles County.
The new ordinance covers employers located or doing business in the unincorporated areas of Los Angeles County, and that employ five or more employees anywhere, regardless of location. All employees, regardless of their position, are part of this count including business owners. The definition of “employee” for the purposes of this ordinance, is very broad and includes contract, contingent, seasonal, and temporary workers.
Some of the areas where the county is more restrictive are:
Criminal History Inquiries – in addition to the state restrictions, employers are prohibited from discussing any part of an applicant’s criminal history until the background check is completed and a copy of the report has been given to the applicant.
Look Back Period – The county ordinance only allows for a 7-year look back period.
The FCOE also has requirements for conditional offers of employment which must include:
- “A written statement that the offer is contingent upon a review of the applicant’s criminal history;
- A written ‘good cause’ statement justifying why the criminal background review is necessary for the position (a generic statement only citing “safety concerns” will not suffice); and
- The written disclosure of any other background checks or screening requirements that will be conducted by the employer, such as drug testing, social media history, or education verification.”
There are other areas where the ordinance is more restrictive than the state. Any employer located within or with remote employees who live in unincorporated Los Angeles County should review the new laws with their corporate council.
Source: Foley & Lardner LLP