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Friday, Mar 29, 2024

Ban the Box Stipulation Becomes L.A. Law

If you ever applied for a job that required you to fill out an application, you may have seen a checkbox next to the question “Have you ever been convicted of a felony?” This year, a new regulation in the city of Los Angeles requires employers to remove that box along with the question about the applicant’s criminal history. July marked the start of enforcement of the Fair Chance Initiative for Hiring Ordinance, otherwise known as Ban the Box. While no fines have been charged to any employers yet, the city has confirmed that “several investigations are in process due to complaints alleging violations.” The ordinance does more than simply ask employers to ban the box from their applications. It bans them from considering the criminal history of an applicant (i.e., background check), until after a conditional job offer is made. Once a conditional offer is made and an employer discovers a criminal conviction, to rescind the offer, the employer must present a written statement to the applicant with their reason. Richard Rosenberg, partner at the law firm Ballard Rosenberg Golper & Savitt in Encino, said as with any regulation, this one is full of exceptions and details that may confuse employers. For example, if an employer is mandated by law to obtain information regarding conviction, such as for jobs that require handling of fire arms, they will be exempt from the regulation. But for most employers that would like to be exempt, they must apply for an exemption status with the Bureau of Contract Administration, which is part of the city’s Department of Public Works. Rosenberg advised that employers sit down with a labor attorney to discuss how this will affect their business practices. “If you consider criminal records, you have to know about the obstacles and review policies and practices to make sure they are in compliance,” said Rosenberg. “If you are going to consider (criminal history), you have to make sure it’s carefully tailored. You can’t automatically reject an applicant.” Rosenberg added that complex regulations like these can become an administrative burden. However, they are rooted in providing equal opportunity. “At the core, these cases are about the protected class,” said Rosenberg. “The regulation is designed to grapple with the realization that certain portions of the population have more chance of being incarcerated.” The ordinance is based on proven research that certain minority groups are more likely to be arrested, charged and convicted of a crime than other groups who commit the same crime. Therefore, if an employer refuses to hire someone because of the person’s criminal record, that employer may be discriminating against that class of minorities. Although not intentional, the employer’s hiring policy is discriminatory, Rosenberg explained. While the new ordinance may seem like an invitation for frivolous lawsuits, Kim Fitzpatrick, division manager for Office of Wage Standards, said there are tools in place to help employers. For example, the ordinance requires that a violation be reported to the city office before any lawsuits are pursued. For now, the ordinance is mainly enforced by following up on complaints that have been submitted. “We have solicited feedback from the business community,” said Fitzpatrick. “We are also providing additional guidance for businesses that are looking for support.” Past Depositions Recent corruption charges against Palmdale Mayor Jim Ledford have brought to light how an unrelated past deposition can become the starting point for a criminal investigation. In June, Ledford was charged by the Los Angeles County District Attorney’s Office with conspiracy. The charge alleged that Ledford received money from local consultants and failed to disclose them. Following the charge, Los Angeles Times reported that “issues raised in the (past) deposition have become part of a public corruption investigation into Ledford.” That past deposition was when Ledford was deposed following a suit filed against the city of Palmdale. The suit, which Palmdale eventually lost, alleged that the city violated the California Voter Rights Act. The deposition was led by litigation attorney and Lancaster Mayor Rex Parris, and included questions regarding Ledford’s source of income. Attorney Tamiko Herron, at Owen Patterson & Owen said in general, depositions carry the same weight as a court testimony. “Deposition testimony is testimony under oath,” said Herron. “The fact that you are in a conference room setting doesn’t negate that.” Herron added that it is standard practice for admonition, or the ground rules, to be given to the defendant and counsel at the beginning of the deposition so they are fully informed. Ledford appeared in court July 26 for arraignment. However, the judge agreed to push back the arraignment to Oct. 19, following a request from the defense attorneys. Staff Reporter Iris Lee can be reached at (818) 316-3130 or [email protected]

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