Legal Disclaimer: Validity Screening Solutions provides this material for educational and informational purposes only, and shall not be construed as legal advice, express or implied. For questions regarding your organization’s practices and compliance with applicable laws, please consult with your legal counsel.
Municipal and State Developments
Los Angeles County Fair Chance Ordinance
Los Angeles County passed the Los Angeles County Fair Chance Ordinance (FCO) for Employers on February 7, 2024. The FCO takes effect September 3, 2024. Here is an overview of the new ordinance.
Covered Employers
The ordinance applies to individuals, corporations, associations, labor organizations, etc., that are located or doing business in the unincorporated areas of Los Angeles County, and that employs five or more Employees. This includes any individual that provides services pursuant to a contract, whenever the individual will perform at least two hours of work on average each week in the unincorporated areas of Los Angeles County.
Job Postings
Employers are prohibited from using language in job postings such as, No Felons, Must Pass Background Check, Must Have Clean Record, etc. Employers are required to include language that states qualified applications with arrest or conviction records will be considered for employment in accordance with the Los Angeles County Fair Chance Ordinance for Employers and the California Fair Chance Act. If an employer is required by law to prevent the hiring of individuals with a criminal history, then the employer must specify the laws and/or regulations that impose those restrictions in the job posting.
Job Application and Interview
Employers are prohibited from asking about criminal history prior to a conditional offer of employment or during the interview process. Employers can not encourage or require applicants to disclose criminal history before a conditional offer of employment. If an applicant reviews criminal history during an interview, employers can not end the interview early. If the application did not provide criminal history information on their job application, the employer cannot reject the application.
Look-back Period for Criminal Convictions
Employers can not consider convictions that are more than seven years old from the date of disposition. There are some exceptions to this look-back period, including but not limited to:
- Positions where the individual is providing care or services to a minor or dependent adult.
- Positions where the individual provides support services or care to a person 65 years or older.
Pre-Adverse and Adverse Action Requirements
If an employer is planning to rescind a conditional job offer or take other adverse action based on an applicant’s criminal history, the employer must adhere to the following Requirements.
- First, the employer must conduct an initial Individualized Assessment. The assessment must be documented in writing and evaluate whether the applicant’s criminal history “has a direct, adverse, and negative bearing on the person’s ability to perform the job duties such that it justifies denial of the job position of adverse action.”
- If the employers intends to rescind the job offer, or take other adverse action, after the initial Individualized Assessment, the employer must provide a preliminary notice of adverse action. This is also known as a Pre-Adverse Action notice. The notice must be sent via email and postal mail. The notice should include:
- Statement informing the applicant that the intended adverse action was based on a review of their criminal history.
- Statement explaining the applicant’s right to respond before the final decision is made. The statement must also inform the applicant that they may include evidence challenging the accuracy of the criminal history information, and/or evidence of rehabilitation or mitigating circumstances.
- A copy of the initial Individualized Assessment.
- List of the disqualifying convictions.
- Copy of the consumer report, and if applicable, any other documents or information relating to criminal history.
- The employer must allow the applicant at least 5 business days to respond to the Pre-Adverse notice after it is received by the applicant.
- If the applicant notifies the employer in writing that they dispute the accuracy of the information, or they need additional time to written evidence of rehabilitation, within the 5-day waiting period; then, the employer must allow an additional 10 business for the applicant’s response.
- Once the applicant’s response is received, the employer must conduct a second Individualized Assessment.
- If the employer decides to withdraw the conditional offer, or take any other adverse action, after the second Individualized Assessment, the employer must send an Adverse Action notice. The notice should include:
- A copy of the second individualized assessment
- Notice of the disqualifying conviction (s)
- Information regarding any existing procedure the employer has the person to challenge the decision or request consideration.
- Must notify the applicant of their right to file a complaint with the Los Angeles County Department of Consumer and Business Affairs (DCBA) for violation of the county’s ordinance.
- Must also notify the applicant of their right to file a complaint with the California Civil Right Division for violation of the state’s Fair Chance Act.
It is recommended California employers review and update any necessary documents (job applications, pre-adverse & adverse action notices, etc.), provide training to employees involved in the hiring process, and consult with qualified legal counsel to ensure full compliance with the new ordinance.
Colorado Job Application Fairness Act
Last year, Jared Polis, Colorado Governor, signed Senate Bill 23-058, also referred to as the Job Application Fairness Act (JAFA). The law prohibits employers from inquiring about the following information “at the time of an initial employment application,”.
- Applicant’s age,
- Date of birth,
- Dates of attendance and/or graduation dates from educational institutions.
The law becomes effective July 1, 2024. It recommended Colorado employers review their hiring practices with qualified legal counsel to ensure full compliance with the new law.
Massachusetts Possible Ban on Credit Checks
The Massachusetts House of Representatives recently passed a bill that would restrict the use of credit checks for employment purposes. Under House Bill 1434, employers would be prohibited from obtaining or using credit reports in employment decisions. Employers cannot ask job applicants any questions surrounding their credit worthiness, credit standing, etc. The bill is currently waiting to be passed by the Senate. If signed by Massachusetts Governor, the bill will take effect January 1, 2025.
New Clean Slate Laws Taking Effect Soon
California
California’s Clean Slate law was set to take effect on July 1, 2023. However, the effective date was moved to July 1, 2024. Under this law, the following offense types will be eligible for automatic expungement:
- Infractions and Misdemeanors – 1 year from date of disposition.
- Eligible Felonies – 4 years from date of disposition.
Some exemptions exist for cases involving serious/violent Felonies.
Colorado’s Clean Slate law will also become effective July 1, 2024. The following offense types will be automatically expunged:
- Civil Infractions – 4 years from the date of final disposition.
- Petty Offenses and Misdemeanors – 7 years from the date of final disposition.
- Eligible Felonies – 10 years from either the date of final disposition, or the completion of all proceedings, supervisions, or release.
Certain exemptions exists for cases that involve certain violent and sex offenses, and cases that fall under the “Victims’ Rights Act.”
Lehigh County, Pennsylvania’s Anti-Discrimination Ordinance Takes Effect June 1, 2024
Lehigh County, Pennsylvania recently enacted the Lehigh County Human Relations Ordinance. The ordinance will define non-discrimination requirements for employment, housing, education, health care, and public accommodations specific to the county.
In addition to establishing protected characteristics, the ordinance prohibits employers from doing the following regarding criminal record history and salary history.
- Employers can not ask job applicant to disclose what their salary is or was from current or previous employment.
- On job applications, employers can not ask whether the applicant has ever been convicted of a crime.
- Employers must wait until after the initial interview before requiring an applicant to disclose prior criminal convictions.
- Employers can only consider convictions that do not relate to an applicant’s suitability for employment.
Federal Developments
The EEOC filed a lawsuit last month against convenience store chain, Sheetz. The lawsuit alleges Sheetz used racially discriminatory hiring practices, via its criminal background screening process, since at least 2015. According to the press release, the EEOC claims Black, American Indian/Alaska Native, and multiracial applicants were disproportionately denied job offers by Sheetz due to their criminal history.
The U.S. Drug Enforcement Administration (DEA) Agrees To Reschedule Marijuana
The DEA has agreed with the recommendation of the U.S. Department of Health and Human Services (HHS) and has announced their intent to move Marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA). Moving to Schedule III would put Marijuana on the same level as ketamine, anabolic steroids, and some acetaminophen-codeine combinations.
EEOC Releases Revised Workplace Harassment Guidance
The EEOC released its revised Enforcement Guidance on Harassment in the Workplace on April 29, 2024. The EEOC has not released guidance on harassment since the 1990s. The new guidance took effect immediately.
Some of the major takeaways include the following:
- Harassment of LGBTQ+ workers can be considered a violation of Title VII of the Civil Rights Act of 1964.
- Sexual harassment definition was broadened to include pregnancy, childbirth, and other “related medical conditions.”
- Under Title VII, employers are required to accommodate an employee’s sincerely held religious beliefs. However, employers also have a duty to protect workers against harassment that is religiously motivated.
- Harassment can occur virtually (i.e. email, instant message, videoconference, other online technology).
- The EEOC included resources for employers to assist them with reviewing and updating their workplace harassment policies. ‘
It is recommended employers review the Enforcement Guidance on Harassment in the Workplace and review their policies to ensure compliance with the new guidance.
EEOC Issues Final Regulation On Pregnant Workers Fairness Act
On April 15, 2024 the EEOC issued a final rule on the Pregnant Workers Fairness Act (PWFA). The PWFA took effect June 27, 2023, however, the EEOC’s final regulation will become effective June 18, 2024. The PWFA requires most employers with 15 or more employees to provide “reasonable accommodations” for a qualified employee or applicant’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer undue hardship.
The PWFA builds upon existing protections provided under Title VII of the Civil Rights Act of 1964 and access to reasonable accommodations under the Americans with Disabilities Act (ADA). Please note the PWFA applies only to accommodations and does not replace any federal, state, or local laws that are more protective of employees and job applicants.
The EEOC provided examples of possible reasonable accommodations. Some of the examples include the following below:
- Additional breaks to drink water, eat, rest, or use the restroom.
- Changing food or drink policies to allow for water or food.
- Leave for health care appointments.
- Leave for recovery from childbirth or other medical conditions related to pregnancy or childbirth.
To view the full list of possible reasonable accommodations, please see the EEOC’s “What You Should Know About the Pregnant Workers Fairness Act.”
