LA County Board

12. Establishing a Fair Chance Ordinance in Los Angeles County\nRecommendation as submitted by Supervisors Mitchell and Solis: Direct the\nInterim County Counsel, in collaboration with the Directors of Personnel and\nYouth Development, the Chief Executive Officer, the Interim Director of Justice,\nCare, and Opportunities Department, the Directors of Consumer and Business\nAffairs and Economic Opportunities, the Worker Education and Resource\nCenter, the Public Defender, the Alternate Public Defender, the reentry\npartners, and other relevant County and community stakeholders, to report back\nto the Board in writing in 90 days with a draft Fair Chance Ordinance\n(Ordinance) that:\na. Applies to the following employers:\ni. Employers with five or more employees operating in\nunincorporated areas of the County;\nii. Employers with five or more employees that receive County\ncontracts and leases, including, but not limited to, County\ncontractors and subcontractors;\n1. For contractors and subcontractors, this ordinance\nshould apply to the portion of operations that would\nbe or are performing work in furtherance of a\ncontract with the County. This sub-directive should\nnot be interpreted to exclude any employees\nperforming work in the unincorporated areas of the\nCounty that is not related to a contract with the\nCounty; and\n2. In accordance with State law, the ordinance should\nnot apply to any position where an employer is\nrequired by another law or a licensing requirement to\nconduct background checks or restrict employment\nbased on criminal history;\nb. Does not apply to non-County public agency employers;\nc. Applies to employees whose positions involve or will involve\nworking at least eight hours per week, including temporary,\nseasonal, part-time, contract, contingent, and commission-based\nwork. It should also cover work performed through the services of\na temporary or other employment agency, including non-profit\norganizations, and any form of vocational or educational training,\nwith or without pay;\nd. Requires employers to:\ni. Specify in all job solicitations and advertisements that\nqualified applicants with arrest and conviction records will\nbe considered for the position in accordance with the\nOrdinance and the Fair Chance Act (FCA); and\nii. Conspicuously post the official Ordinance notice in every\nworkplace, job site, and on the employer’s website, with the\nnotice to be provided in multiple languages to ensure\naccessibility;\ne. Prohibits employers from asking, encouraging, or otherwise\nproviding opportunities for applicants to voluntarily disclose\ninformation about their criminal history;\nf. Prohibits employers from ever considering the following:\ni. An arrest not leading to a conviction, except for unresolved\narrests;\nii. Participation in a diversion or deferral of judgment program;\niii. A conviction that has been dismissed, expunged, otherwise\ninvalidated, or inoperative;\niv. An adjudication in the juvenile justice system;\nv. An offense other than a felony and certain misdemeanors,\nexcept for infractions related to the driving of a vehicle;\nvi. A conviction that is more than seven years old (unless the\nposition being considered primarily provides services to or\nsupervises minors, dependent adults, or persons 65 years\nof age or older); and\nvii. A conviction for decriminalized conduct, including the\nnon-commercial use and cultivation of cannabis;\ng. Requires employers, before taking adverse action such as,\nrefusing to hire, discharging, or not promoting an individual based\non a conviction history or unresolved arrest, to perform a written\nassessment that effectively establishes a direct adverse\nrelationship between the specific aspects of the applicant’s\ncriminal history with the inherent risks associated with the\nperformance of one’s duties in the employment position sought,\nand provide this written assessment to the applicant, along with a\ncopy of the full background check results, with the notification of\nthe preliminary decision to rescind a conditional job offer, to\ndischarge, or to not promote, both in electronic and physical form;\ni. Further require employers to keep a record of the\nassessment for a proscribed period that accounts for,\namong other things, a potential need for job applicants to\npursue, and an employer’s need to defend themselves from,\nlitigation;\nh. Requires employers, before taking adverse action such as\nrefusing to hire, discharging, or not promoting an individual based\non a conviction history or unresolved arrest, to give the individual\nan opportunity to present evidence that the information is\ninaccurate, the individual has been rehabilitated, or other\nmitigating factors within specified timelines aligned with the FCA;\nand to account for any information submitted and re-evaluate\nwhether a direct and adverse nexus between a conviction(s) and\njob duties continues to exist;\ni. Establishes reasonable and specified timelines within which\nemployers must respond to a job applicant’s appeal, in both\nelectronic and physical form, of a decision to rescind a conditional\njob offer, and within which employers must make final hiring\ndeterminations. This timeline should account for the need to\nrespond to applicant(s) in a timely manner given their potential\ninability to wait for an unreasonably delayed notification;\nj. Prohibits the employer from filling the employment position sought\nby the applicant until after the minimum time period for the\napplicant to submit an appeal has elapsed or, if the applicant has\nsubmitted an appeal within that time, after the employer has\nresponded to the appeal with a final decision;\ni. Further, employers should be prohibited from rescinding a\nconditional job offer for any reason other than finding a\ndirect and adverse nexus between one or more convictions\nand job duties;\nk. Establishes penalties and administrative fines for an employer\nviolation of any provision of this ordinance, which shall:\ni. Be up to $500 for the first violation, up to $1,000 for the\nsecond violation, and up to $2,000 for the third and\nsubsequent violations; and\nii. Require that no less than half of the fine be awarded to the\ncomplainant;\nl. Further, the Interim County Counsel should work with relevant\nDepartments, reentry partners, and community stakeholders to\nmake recommendations, and report back to the Board in writing in\n90 days with language for this draft Ordinance, for the following\nproposed provisions:\ni. Prohibit employers from posting advertisements and job\napplications that contain phrases that inappropriately or\nunnecessarily deter job seekers from applying, such as\n“background check required” or “must have clean record”;\nii. Stricter limits on employers’ consideration of unresolved\narrests, with consideration for the presumption of\ninnocence;\niii. Identified misdemeanors and “wobblers” (offenses that can\nbe charged as either a misdemeanor or felony) that\nemployers should not be allowed to consider;\niv. “Look back” periods for any specific offenses shorter than\nthe “ceiling” of seven years, as informed by\nevidence-based findings and any relevant requirements\nunder State or Federal law to ensure that system-impacted\nindividuals are not unnecessarily harmed by overly long\nlook back periods;\nv. Prohibit employers from requesting additional documents,\nevidence, and other information from the applicant which\nmay contain information that is prohibited (including\ncharges that never became convictions); incorrect or\nunnecessarily inflammatory; and can be difficult to obtain;\nvi. A specific timeline within which employers would be\nrequired to complete and send the results of the\nindividualized nexus assessment to a job applicant following\nthe employer’s receipt of background check results;\nvii. Clarification of instances in which employers should be\nrequired to follow a rebuttable presumption that there is no\nlink between the conviction history and risks associated with\nthe performance of job duties, including whether this should\ngenerally apply to applicants not incarcerated or have\ncompleted a sentence;\nviii. The criteria used by employers to evaluate a candidate’s\nappeal, for the purpose of ensuring that such evaluations\ndetermine, upon consideration of the appeal, whether there\nis still a reasonable nexus between a candidate’s criminal\nhistory and job duties, with consideration for how to make\nsuch criteria public information to enhance transparency of\nthe process;\nix. A minimum amount of time, greater than five business days,\nfor the candidate to appeal an employer’s preliminary\ndecision to take an adverse action, with consideration for\nthe amount of time it can take to prove that a background\ncheck is inaccurate;\nx. Information employers should be required to include in their\nresponse to an appeal, for the purpose of disclosing\nenough information to reasonably determine whether there\nis a direct nexus between criminal history and job duties;\nxi. A requirement that employers submit annual compliance\nreports;\nxii. Penalties and fines for any entities that conduct background\nchecks or evaluate a conviction history on behalf of an\nemployer for violations of this ordinance;\nxiii. Protections for system-impacted individuals who work as\nunpaid interns, independent contractors, or otherwise\nprovide services pursuant to a contract who face barriers in\ngetting work, including, but not limited to, an inability to get\ninformation from employers on the reasons for this that may\nrelate to their criminal history; and\nxiv.Provisions that would prohibit employers from conducting a\nbackground check for jobs where a background check is\nnot necessary and required by law;\nInstruct the Interim County Counsel, in collaboration with the Director of\nConsumer and Business Affairs, and in consultation with other relevant County\nand community stakeholders, to report back to the Board in writing in 90 days\non the feasibility of making all provisions of this proposed ordinance apply to\nentities that are solely part of County government, not to include entities that the\nCounty is only one part of, including, but not limited to, any joint powers\nauthorities, this should include an analysis of how potential conflict of interest\nissues may be addressed;\nInstruct the Director of Consumer and Business Affairs, in collaboration with the\nChief Executive Officer, the Directors of Economic Opportunities, Youth\nDevelopment and Internal Services, the Interim Director of Justice, Care, and\nOpportunities, the Auditor-Controller, the Worker Education and Resource\nCenter, the Public Defender, the Alternate Public Defender; reentry partners,\nand other relevant County and community stakeholders, to report back to the\nBoard in writing in 90 days, with a plan to enforce this ordinance, including, but\nnot limited to:\na. Recommendations for how the Department of Consumer and\nBusiness Affairs’ Office of Labor Equity should enforce the\nordinance, including:\ni. Potentially collecting and receiving yearly compliance\nreports;\nii. Investigating alleged violations of this ordinance;\niii. Assessing and enforcing penalties and administrative fines;\niv. Creating and maintaining a list of employers who are found\nto have committed multiple violations of this Ordinance and\nthe FCA, to be available, at minimum, on a public facing\nwebsite. This list should serve to deter further violations by\nemployers who have already been assessed the maximum\nfine allowed by the Ordinance;\nv. Meaningfully aligning the ordinance enforcement approach\nwith the Office of Labor Equity’s proactive business\noutreach efforts and the Department of Economic\nOpportunities Fair Chance Hiring Program, including its\nproactive outreach, education, and technical assistance for\nemployers to assist in pre-compliance with the ordinance\nand access to Fair Chance hiring benefits as well as\nsupport for system-impacted individuals through America’s\nJob Centers of California; and\nvi. Coordination with other departments to support on\nenforcement processes;\nb. Recommendations for data points that should be collected and\npublicly reported to inform the County’s enforcement of this\nordinance, and a plan for the collection and public reporting of this\ndata;\nc. Recommendations, as informed by best practices, for processes,\nprocedures, as well as documents (including forms and templates)\nand guidance for:\ni. Businesses to follow when conducting a nexus assessment,\nfor the purpose of assisting employers with complying with\nthis ordinance; and\nii. Job applicants to follow when appealing an employer’s\ndecision to revoke a job offer, discharge, or not promote\nbased on an employer’s finding of a direct and adverse\nrelationship between the applicant’s criminal history and\njob duties, for the purpose of ensuring that applicants have\na full opportunity to defend themselves;\nd. Recommendations for the Department of Economic Opportunities\nto expand the current Fair Chance Hiring Campaign to include\ninformation about the ordinance, other worker rights , and relevant\nservices, and continue to engage businesses located in\nunincorporated areas, including County contractors and\nsubcontractors, and County leaseholders, to raise awareness\nabout the provisions of this ordinance and share best practices\nand other resources to support their compliance; and\ne. An estimated yearly budget required to staff enforcement and\nadministrative processes, and a projection of how much of the\nyearly budget could be covered through fine collection;\nInstruct the Director of Personnel, in collaboration with the Chief Executive\nOfficer, the Director of Economic Opportunities , and the Worker Education and\nResource Center, and in consultation with relevant County Departments, reentry\npartners, and community stakeholders, to do the following within 120 days:\na. Report back to the Board in writing with an amended County\npolicy to ensure alignment with the Ordinance as described in\nDirective No. 1, Policy amendments should include:\ni. An internal process where job applicants who are currently\nin the job application process for a County position and/or\nwho are engaged in the Fair Chance appeal process\nfollowing the initial decision to rescind a conditional job offer\ncan make a complaint or inquiry regarding a potential\nviolation of Fair Chance policies, this would include\ncomplaints or concerns regarding undue delay in the\nbackground check process, delays in the provision of a\nwritten nexus assessment, and/or a lack of responsiveness\nby the hiring County Department with regard to a job\napplicant's submission of mitigating evidence regarding\nconviction history and suitability for the County job position;\nii. A requirement for a strict seven-year look-back period for\nconviction history during a background check following a\nconditional job offer, with consideration for shorter look\nback periods for convictions where the comparative risk of\nre-offending, as supported by evidence-based findings, is\ninsignificant;\niii. Policies and processes that help guard against the potential\nmisuse or over-reliance on categoric rejections of\napplicants with certain types of convictions when not\nrequired by law;\niv. The mandatory use of a standardized County nexus\nevaluation form to be used by all Departments and the\nelimination of all non-compliant department-specific forms;\nv. Timeframes for hiring Departments to review, communicate\nwith candidates and issue decisions on nexus evaluations.\nvi. Mandatory use by all Departments of the Countywide Fair\nChance tracking system; and\nvii. A requirement for Departments to identify and report to the\nDepartment of Human Resources, the appropriate\nDepartmental subject matter expert responsible for review\nand approval of nexus evaluations;\nb. Conduct a Countywide audit of Departmental compliance with the\nCounty Fair Chance Policy and develop corrective action plans\nwhere non-compliance is found, this audit should include an\nanalysis of how racial biases impact Departmental compliance,\nand report the findings of the audit to the Board;\nc. Establish a regular audit process for all County Departments with\nregard to compliance with Fair Chance policies, and a process for\nregular reporting to the Board;\nd. Conduct a review of Countywide positions requiring a background\ncheck to determine if a background check is necessary or\nrequired by law and report the findings to the Board;\ne. Hold Department Heads accountable for compliance with the Fair\nChance Act and the County's Fair Chance policies, including, but\nnot limited to, imposing Management Appraisal and Performance\nPlan requirements, and informing hiring managers of the\nconsequences of failing to adhere to Fair Chance policies,\nincluding potential negative performance evaluations and/or\ndiscipline for failing to comply with Fair Chance policies;\nf. Identify additional data points to collect and publicly report on\nCounty websites to allow the public to see and assess the County’s\ncompliance with the Fair Chance Policy, with consideration for:\ni. Data points that help identify barriers to securing\nemployment, including the amount of time it takes to\ncomplete and send the results of nexus assessments to\napplicants; and\nii. Breaking down the County’s publicly reported data by\nDepartment. (23-0885)\nAttachments: Motion by Supervisors Mitchell and Solis\nSupporting Documents\nPublic Comment/Correspondence