City of Los Angeles Bans the Box for Private Employers

bantheboxEffective January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring Ordinance will ban private employers from asking about an applicant’s criminal history or conducting a criminal background check until after extending a conditional offer that is only conditioned on the result of the check.

The Ordinance applies to any private employer that employs at least 10 people who perform at least two hours of work each week within the boundaries of the City of Los Angeles. Exceptions include employers who are required by law to obtain an applicant’s convictions, or those who are prohibited by law to hire an individual convicted of a crime.

Banned Hiring Practices

The Ordinance is one of the strongest fair chance hiring laws in the nation, stating that an Employer shall not:

  1. Include on any application for employment any questions that seek the disclosure of an applicant’s criminal history.
  2.  At any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made.
  3. Take adverse action against an applicant to whom a conditional offer has been made based on criminal history unless the employer performs a written assessment linking the applicant’s criminal history with risks inherent in the duties of the position at hand.

Employer Assessment of Criminal History

  1.  The employer must provide the applicant with a Fair Chance Process, including written notifications of the proposed adverse action, a copy of the written assessment and any other information supporting the adverse action.
  2. The employer cannot take adverse action or fill the position sought by the applicant for a period of at least 5 business days after the applicant is informed of the proposed adverse action in order to allow the applicant to complete the Fair Chance Process.
  3. If the applicant provides information or documentation during the Fair Chance Process, the employer must consider the information and perform a written assessment of the proposed adverse action.
  4. If after reassessing the proposed adverse action decides to proceed with the adverse action, the employer must notify the applicant and provide a copy of the written assessment.

Notice and Posting Requirements

An employer must state in all advertisements that it will consider qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance. Employers also must post a notice informing applicants of the provisions of the Ordinance in a “conspicuous place at every workplace, job site or other location in the City under the employer’s control and visited by employment applicants.” Employers must also send a copy of the notice to each labor union with which they have a collective bargaining agreement covering employees located in the City.

Record Retention

Employers must retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Ordinance for three years following the receipt of a job application.

Enforcement and Penalties

Civil enforcement can be brought after applicant or employee has reported the violation to the Designated Administrative Agency (DAA), which must be done within one year of the alleged violation. At that time, the administrative process must be completed or a hearing officer’s decision must be rendered, whichever is later.

In terms of administrative enforcement,  penalties and administrative fines for an employer violation can be up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for the third and subsequent violations. Penalties and fines will not apply until July 1, 2017. Prior to July 1, 2017, the DAA will issue written warnings to employers that violate the Ordinance.

Recommended Actions in Preparation for January 22, 2017

  • If you have not already done so, review job applications and remove any criminal records question.
  • Review all employment material and remove any question regarding the applicant’s willingness to submit to a background check before a conditional offer.
  • Rescind any automatic rules in place to exclude candidates with criminal records from employment.
  • Review your hiring and interview policies and processes. Revise them to delay inquiry into criminal history until AFTER a conditional offer of employment.
  • Train all individuals involved in recruitment, hiring, interviewing, and individualized assessments to comply with the requirements of this law.
  • Establish protocol for handling individualized assessments.

To help ensure Ban the Box compliance, contact a CARCO Specialist at 1-866-557-5984 or click here.

 

 

The Importance of Using an Accredited Background Screening Company: Jones vs. Waffle House

WAFFLEHOUSE_Logo_5x3A Florida judge recently permitted a class action lawsuit against Waffle House for non-compliant criminal background checks to move forward.

Plaintiff William Jones filed a class action lawsuit against Waffle House in October 2015. Despite having worked for Waffle House “without issue” for more than 20 years, he claims the company denied him a job that he reapplied for based on the results of a background check that showed he had a criminal history.

Jones says Waffle House never notified him that it intended to deny his job application and never provided him with a copy of the background check.

The plaintiff alleges that Waffle House denied applicants for employment based on background checks the company acquired from The Source for Public Data LP, also named as a defendant in the class action lawsuit.

According to the class action lawsuit, Public Data claims it is not a consumer reporting agency but instead just an aggregator of public records. As such, Jones says, the company places the burden on those subject to its reports to correct any errant data at the source. “Public Data does not recognize any duty under the FCRA to correct the data itself,” Jones says.

Waffle House filed an appeal to dismiss the proposed FCRA class action against the company, which was subsequently denied by the judge. On August, 2016, Waffle House announced that it will appeal the judge’s decision. The judge rejected Waffle House’s claims that they had “no recollection or record” of using Public Data to perform a background check.

In its notice of appeal, Waffle House argues that the Plaintiff signed an arbitration agreement when applying for the job and requested that the judge compel arbitration. Following the judge’s refusal to dismiss the lawsuit, Waffle House announced that it would seek an appeal to the Eleventh Circuit, citing failures of the Florida court to follow the Federal Arbitration Act.

The above issue is a prime example of why employers should engage the services of an accredited, qualified and experienced consumer reporting agency that provides background screening services.  It is especially important to use a CRA that uses only official sources of data and confirms all information from online databases with the courts.

 

 

William G. Jones v. Waffle House Inc. et al., case number 6:15-cv-01637, in the U.S. District Court for the Middle District of Florida, Orlando Division