The San Francisco Board of Supervisors unanimously passed Ban the Box legislation to expand the city’s existing law to include most private employers, publicly funded housing providers and city contractors.
Under San Francisco’s Fair Chance Ordinance, employers are barred from inquiring about an applicant’s criminal convictions and pending charges on the employment application or during the first live interview. Exempted from the ban are applicants for jobs where criminal history is relevant, such as law enforcement and child care.
At the point when employers can inquire into criminal history, they can ask only about misdemeanor and felony convictions that occurred within seven years of the inquiry.
Employers are prohibited from asking about:
- arrests other than those for which charges are still pending,
- the completion of a diversion program,
- sealed and juvenile offenses, and
- infractions that are not felonies or misdemeanors.
- Before making a permissible inquiry, employers must provide the applicant with a notice regardless of whether the inquiry is made directly to the applicant or to a third-party consumer reporting agency, i.e., a background check vendor.
- If an applicant does disclose criminal history, employers can consider the information only if it has a direct and specific negative bearing on the applicant’s ability to perform the responsibilities related to the position.
- In evaluating whether criminal history meets this standard, the employer must consider whether the position offers the opportunity for the same or similar offenses to occur, and whether the underlying conduct will recur in the position.
- The employer must consider the time that has elapsed since the conviction or unresolved arrest and must conduct an individualized assessment taking into account a list of factors that might evidence rehabilitation or mitigating circumstances.
- If the employer decides to reject an applicant based on criminal history, it must provide a pre-adverse action notice and a final adverse action notice.
- The notice must be provided regardless of whether the employer obtains the criminal history information through the applicant’s self-disclosure or a background report provided by a consumer reporting agency.
- The notice must identify the specific criminal history that provides the basis for the adverse decision, whereas the FCRA has no such requirement.
- The employer must wait at least seven days from the date of the notice before taking final adverse action.
- If the applicant disputes the criminal history or provides information regarding rehabilitation or mitigating factors during the seven-day waiting period, the employer must wait a “reasonable time” before taking adverse action.
- Employers must retain records related to the hiring process for three years and provide them to the OLSE for inspection upon request.
The consequences of non-compliance could be significant:
The City can pursue civil remedies for violation of the Ordinance, including:
- an injunction,
- reinstatement of the employee,
- back pay and benefits,
- $50 per employee for each day the Ordinance was violated, and
- attorneys’ fees and costs.
- The OLSE can pursue administrative enforcement which, during the first 18 months after the Ordinance’s effective date and for a first violation, is limited to a warning and an offer of assistance with compliance.
- After the initial grace period, the OLSE can seek penalties of up to $50 per employee for a second violation and of up to $100 per employee for each subsequent violation.
It is recommended that San Francisco employers review their employment application and hiring processes with counsel to ensure compliance.
Click here for information on the Ordinance: