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  • In February, the Los Angeles County Board of Supervisors passed an ordinance aimed at promoting fair employment practices and ensuring that criminal history is not an obstacle to securing employment. The ordinance added several compliance requirements to the California Fair Chance Act for employers considering the criminal history of applicants and employees in making employment decisions.

    The Fair Chance Ordinance (FCO) applies to employers with five or more employees in unincorporated areas of Los Angeles County and is set to take effect on March 28, 2024, and become operative on September 3, 2024.

    Let’s dive into a summary of the key requirements of the Fair Chance Ordinance and understand its implications for employers and job applicants.

    Background Checks

    The FCO places specific requirements on employers regarding the timing and conduct of background checks. The key points to note include the following:

    • Conditional offer requirement: Covered employers are prohibited from inquiring about criminal history before extending a conditional offer of employment unless legally required.
    • Written notice: If conducting a background check after a conditional offer, the employer must provide written notice outlining the reasons for the review and the types of information, background, or history that will be reviewed in addition to the applicants’ or employees’ criminal history.

    Employers are not allowed to ask applicants or employees to provide information regarding their criminal history before the employer’s receipt of the criminal background check report.

    Job Postings

    Under the FCO, employers must be transparent in their job postings. The following are critical requirements related to job postings:

    • Inclusive language: Employers must include language in all job postings stating that qualified applicants with arrest or conviction records will be considered for employment.
    • Legal restrictions: Job postings must specify any local, state, or federal laws that impose restrictions or prohibit hiring individuals with a specified criminal history.
    • Intention to review criminal history: Employers must specify their intention, if any, to conduct a review of an employee’s criminal history in connection with a conditional offer and include a list of all material job duties of the specific job position that may be affected by the criminal history.

    Employers are prohibited from including statements in job postings that exclude individuals with a criminal history from consideration for employment.

    Preliminary Notice And Adverse Action

    The FCO mandates a structured process if an employer intends to take adverse action based on an individual’s criminal history after the initial individualized assessment. The process includes:

    • Preliminary notice: If the employer intends to withdraw or rescind a conditional offer of employment or take any other adverse employment action, a preliminary notice must be provided to the applicant or employee, along with an explanation of their right to respond to the notice before the decision becomes final.
    • Consideration of response: The employer must consider all information and documents submitted by the applicant or employee before making a final decision or taking an adverse action.
    • A copy of the initial individualized assessment
    • Notice of the disqualifying convictions
    • A copy of the criminal background check report

    The employer must provide applicants or an employee five business days to respond to the preliminary notice of adverse action before making a final decision. In addition, the applicant or employee must be given at least 10 additional business days to either:

    • Respond to the preliminary notice if they dispute the accuracy of the background check and need time to obtain evidence for rehabilitation or mitigating circumstances
    • Present evidence of rehabilitation or mitigating circumstances orally at a meeting between the applicant or employee and the employer

    Following the applicant’s response and any submission of additional information or evidence, the employer must consider all the information and documents, whether written or oral, before making a final decision or taking an adverse action. Then, the employer must complete a second individualized assessment. If, after this second assessment, the employer makes the final decision to withdraw the conditional offer or take adverse employment action, the employer must notify the applicant or employee by regular mail and electronic mail. This notice should include the following:

    • Notice of the final decision to withdraw the conditional offer
    • A copy of the second individualized assessment
    • Notice of the disqualifying conviction
    • Information regarding existing procedures for the applicant to challenge the decision or request reconsideration
    • Notice of the applicant’s or employee’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs

    It’s also important to note that the employer must provide the final notice of adverse action within 30 calendar days after the applicant or employee responds timely to the preliminary notice. Failure to do so may be presumed as an untimely delay and in violation of the section. To rebut this presumption, the employer must provide a written explanation justifying the delay.

    In addition, employers must maintain and preserve all records relating to the FCO for a minimum of four years after receiving an application. 

    Next Steps

    The FCO’s new requirements in Los Angeles County may make it worthwhile for business owners to consult an outside party such as a professional employer organization (PEO). A PEO like GMS can offer valuable expertise and resources to help business owners understand and adhere to the FCO, ensuring that their hiring practices align with the ordinance’s stipulations. With the support of GMS’ HR experts, business owners can confidently implement fair and inclusive hiring processes, mitigate compliance risks, and focus on fostering a diverse and talented workforce, contributing to a thriving business environment. Contact us today to learn more!

  • Picture this: you’ve identified two ideal candidates for a job vacancy. They check all the boxes for qualifications and appear to be a perfect match for your company culture. During the final stage of the interview process, an employee asks Candidate A in passing about their marital status and whether they have children. This inquiry seemed harmless at the time, and you let it pass without much thought, however, when your company opts to hire Candidate B, you face a discrimination lawsuit from Candidate A.

    It’s no surprise that it takes a lot of questions to determine whether a candidate is the right fit for your company. However, you may not know that there are quite a few interview questions and topics that can land your company in trouble. Under the U.S. Equal Employment Opportunity Commission (EEOC), the supposed conversational question on marital and family status in the above scenario was illegal – and Candidate A was within their rights to follow legal action.

    Hiring is a stressful time for many reasons, and preparing your hiring team with the knowledge they need is one way to ensure compliance with federal laws and regulations.

    Employment Laws And Regulations

    Employment laws extend beyond federal regulations. There are several local, state, and city laws that your business is required to follow. One example of this is the city of Cincinnati’s Salary Equity Ordinance, a measure that took effect in March 2020. This ordinance made it illegal for employers in Cincinnati to ask about a job candidate’s pay history. California Labor Code 432.3, a state-wide law, similarly makes questions surrounding salary history illegal.

    While this ordinance relates to Cincinnati employers, there are many state and city laws across the country, so it’s crucial you fully understand your local regulations. Unlawful questioning can lead to various consequences, including discrimination lawsuits or an investigation by the EEOC, which can be frustrating and challenging to recover from.

    Problematic Topics For Job Interviews

    To safeguard your business, it’s crucial to understand illegal interview questions before you start the interview process. Typically, when you’re ready to fill a vacant position, you’re under time pressure, making it too late to meticulously review your questions for legal compliance. At this point, your business becomes vulnerable to potential lawsuits.

    Some illegal interview inquiries are clear – you shouldn’t ask questions about a job candidate’s race or sexual identity. However, there are several less obvious questions that are also illegal. In addition, as with the marital and familial status example, what you may see as a casual attempt at small talk can be interpreted as a topic that’s off-limits. This means that beyond reviewing your prepared interview questions, it’s crucial to equip your hiring team with guidance on safe conversational topics to avoid inadvertently broaching illegal subjects.

    To help you get started, here are some topics to avoid or proceed with severe caution:

    National origin and citizenship

    Any question regarding a candidate’s national origin can be an issue. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to base hiring decisions on a person’s citizenship or immigration status. Even a question about a candidate’s accent could be interpreted as an attempt at discrimination. You are, however, allowed to ask whether a candidate can legally work in the U.S., provide the required documentation if hired, and read, write, and speak English if needed.

    Religion

    Avoid questions that involve a candidate’s religion. Even roundabout questions like whether a candidate will need time off for religious holidays can be seen as non-job related and an attempt to discriminate against a person for their beliefs.

    Pregnancy status

    Even if the person interviewed is pregnant, it’s illegal to ask about their pregnancy. Not only does this violate set pregnancy discrimination laws, but it can appear as gender discrimination since male candidates won’t have to answer the same questions. General questions about any future planned leave are acceptable if the question isn’t tied to pregnancy. Focus the interview on other neutral job-related questions involving work responsibilities to see if the candidate can perform the necessary tasks.

    Disability

    The Americans with Disabilities Act (ADA) makes it illegal for employers to ask questions that “are likely to reveal the existence of a disability before making a job offer.” That means any questions regarding how many sick days an applicant took in the past year or what prescriptions they take.

    In addition, do not ask if an applicant will need reasonable accommodation unless you know the candidate has a disability. According to the EEOC, it’s acceptable to ask about reasonable accommodations if the applicant voluntarily reveals their disability or there is a clear visual sign, such as if the applicant uses a cane for a severe limp.

    Age or genetic information

    It’s only acceptable to ask about an applicant’s age if it’s directly tied to their job. For example, an individual working at a bar or other 21-plus environments will need proof of age. Even a question such as when an applicant graduated from high school can be viewed as an attempt to identify a person’s age.

    Arrest record

    According to the EEOC, no federal law prevents employers from asking candidates about their criminal history – although “Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964.” It’s important to note that while there’s no federal law against asking about arrest records, many states, such as California, Connecticut and Massachusetts, ban the practice. As such, check your state’s regulations before asking candidates about their criminal history.

    Protect Your Company During The Hiring Process

    Adding a new employee is an exciting step for any business, but it’s essential to ensure your business remains compliant throughout the process. Fortunately, there are many steps that you can take to avoid illegal interview questions. These include:

    • Establishing set interview questions for every candidate
    • Treat every candidate the same during the interview process
    • Take notes and document the results
    • Have more than one interviewer in the room

    Another way to help your business is to hire a professional employer organization (PEO) that can not only oversee employee hiring and training but also help you shoulder the administrative burden created by crucial HR functions. The GMS team can help you stay current on the latest rules and regulations while managing everything from your company’s payroll to employee benefits plans.

    Contact us today to learn more about what we can do to help you protect your company now and prepare for the future.

  • Since the beginning of COVID-19, the job market has continued to experience rapid loss – so much so that it has coined the term The Great Resignation. However, last month the unemployment gap began to show signs of improvement. According to the Bureau of Labor Statistics, U.S. employers added 372,000 new jobs over the past month. This surpassed the forecasts of economists; the U.S. was vastly heading into a recession due to a lack of employment offerings.

    Where Is The Growth 

    When looking at the rapid job growth in June, the specific industries listed below lead the increase: 

    • Professional and business services
    • Leisure and hospitality 
    • Health care

    When it comes to overall unemployment, the gap has now reached 524,000 jobs. While these industries maintain strong job growth, labor force participation did not see a major rise. The number of people in the labor force fell by 353,000.

    Overall Unemployment

    The private sector has recovered and exceeded the employment opportunities, gaining over 140,000 jobs compared to pre-pandemic. However, the overall unemployment rate has still remained at 3.6%, correlating to about two jobs for each unemployed worker. The labor market will continue to remain on the rise as the economy remains low.

    Candidates Power Continued

    According to SHRM, the average hourly wage increased by 10 cents in June, although it remains a tight labor market. Candidates continue to hold the power over their workplace and organization. Through this, employers have implemented a variety of benefits to attract and retain top talent. With new positions on the rise, it is more vital employers implement the benefits their employees desire.

    Why GMS

    Partnering with GMS allows you to ease the administrative functions of your business. Through the ups and downs of the economy, it’s important to continue ongoing efforts to attract and retain top talent. Through times of rapid change and uncertainty, you can rely on GMS. Contact us today!