Los Angeles County:

In 2016, the city of Los Angeles passed the Fair Chance Initiative for Hiring Ordinance (FCIHO).  Preempting California’s Fair Chance Act (FCA) by nearly two years, the FCIHO prohibits private employers operating in the city of Los Angeles from inquiring into a job applicant’s criminal history on job applications or postings.  The first instance in which such an inquiry can be made is after a conditional offer of employment is extended.  An employer that wishes to withdraw an offer of employment based on criminal history must first engage in a defined “Fair Chance Process” with the applicant.

However, the unincorporated areas of Los Angeles remained subject to the state’s FCA – at least until now.  With the passage of the Los Angeles County Fair Chance Ordinance (FCO), the 120-125 unincorporated areas in Los Angeles are now governed by their own strict hiring requirements.  Importantly, the FCO applies to employers with five or more employees operating in these unincorporated areas or employers who have remote workers in these unincorporated areas.  In an effort to preclude “gotcha”-type claims, Los Angeles County has a website where employers can determine whether a particular address (for a facility or a remote worker) falls within the jurisdiction of unincorporated Los Angeles County.

The differences between the FCA, FCIHO, and FCO are numerous, and the FCO is generally more rigorous.  For example, where the FCA and FCIHO do not require any particular language in an offer of employment, the FCO does.  Covered employees in the unincorporated areas of Los Angeles County must communicate an offer that includes the following information:

• A statement that the conditional offer is contingent upon the review of criminal history.
• A statement that the employer has good cause to conduct a review of criminal history for the specific job position with supporting justification provided in writing. A general statement that the employer is performing a review of criminal history due to “safety concerns” without more supporting justification will not comply with this requirement.
• Good cause for the review of criminal history by demonstrating any of the following: (1) the employer faces a significant risk to its business operations or business reputation unless a review of criminal history is conducted for the specific job position; or (2) a review of criminal history is necessary for the specific position due to articulable concerns regarding the safety of, or risk of harm or harassment to, the employer’s staff, employees, contractors, vendors, associates, clients, customers or the general public.
• Specifically state any other types of information that will be reviewed by the employer (e.g., education, social media history, drug testing, etc.).

In addition, both the FCIHO and FCO require covered employers to post a notice informing candidates of their rights under the ordinance at each job site.  Only the FCO, however, adds a requirement that a notice of rights also be posted on any website frequently visited by applicants and employees.

These examples are not exhaustive and serve only to highlight the onerous requirements of the FCO.  Any covered employer operating in, or with employees working in, the unincorporated areas of Los Angeles County should consult with experienced legal counsel before implementing or continuing with an existing practice of reviewing the criminal history of employees or job applicants.

San Diego County:

Like the FCIHO and FCO, San Diego County’s Fair Chance Ordinance (SDFCO) is intended to complement the FCA.  The SDFCO applies to employment positions that involve performing at least two hours of work on average each week within the unincorporated areas of the county. Like the FCA, employers located or doing business in the county with at least five or more employees are prohibited from inquiring about an applicant’s criminal history before making a conditional job offer. 

In a manner similar to the FCIHO, the SDFCO builds upon FCA requirements with greater specificity.  For example, the SDFCO state that if an employer “intends to deny … [e]mployment, transfer, or promotion” based on criminal history, the employer must conduct a written individualized assessment evaluating whether the criminal history “has a direct and adverse relationship with the specific duties that justify” the decision, and follow a county-specific pre-adverse action letter process.  Employers must retain all records related to employment applications for at least one year.

As with the other fair chance systems, in addition to the individualized written assessment, the SDFCO calls for unique pre-adverse action letter requirements. These include an obligation to notify the employee of the nature of the preliminary decision with a copy of the criminal report, along with a notice of the right to file a complaint with the County of San Diego Office of Labor Standards and Enforcement (OLSE) for violations of the ordinance.

If an employer fails to comply with the SDFCO, the OLSE may fine employers for up to $5,000 for a first violation; up to $10,000 for a second violation; and up to $20,000 for third and subsequent violations.  However, fines cannot be issued by the OLSE until July 1, 2025.