A nationwide “ban the box” movement seeks to restrict criminal history information that employers can obtain or use for employment purposes. The movement derives its name from a box on standard job application forms that asks applicants whether they have ever been convicted of a crime.
San Francisco recently joined the ranks of “ban the box” jurisdictions that restrict the criminal record information a private employer can request. Others include Massachusetts, Rhode Island, Minnesota and Hawaii, and the cities of Philadelphia, PA, Buffalo, NY, Newark, NJ and Seattle, WA.
This issue also has received attention at the federal level. In 2012, the EEOC promulgated enforcement guidance on circumstances where consideration of arrest or conviction records in employment decisions may run afoul of federal anti-discrimination laws. The new San Francisco ordinance incorporates some of those concepts, and augments California’s existing restrictions.
Existing California Law
California employers already are subject to limitations on requesting or using criminal record information in connection with employment. Existing statewide restrictions provide that private employers cannot ask a job applicant to disclose, and cannot seek or utilize as a factor in determining any condition of employment, information concerning:
1) An arrest or detention that did not result in a conviction (although applicants and employees may be asked about arrests for which they are out on bail or on their own recognizance pending trial).
2) A conviction that has been judicially dismissed, expunged or ordered sealed, unless certain limited exceptions apply (including that the employer is required by law to obtain the information).
3) Referral to, and participation in, a pretrial or post-trial diversion program.
4) An offense settled in juvenile court or referred to the youth authority.
5) A marijuana conviction that is over two years old, unless certain limited exceptions apply (including that the employer is required by law to obtain the information).
The New San Francisco Ordinance
In February 2014, San Francisco passed a city-wide ordinance that will impose additional restrictions on the extent to which San Francisco private employers may inquire into, request disclosure of, or use an individual’s criminal history for employment purposes.
The San Francisco ordinance will become operative on August 13, 2014. It applies to all employers located or doing business in San Francisco, that have 20 or more employees regardless of their location. However, the restrictions apply only to employment or prospective employment that is wholly or in substantial part within San Francisco city limits.
The San Francisco ordinance is in some respects duplicative of other laws, though it is more restrictive and imposes additional obligations. It “bans the box” on job application forms and goes well beyond. For employers subject to the new ordinance, it provides the following with regard to San Francisco job applicants and employees:
Information Prohibited at Any Time by Any Means
The employer may not at any time or by any means inquire about or require disclosure of, or if such information is received, base any adverse employment decision in whole or in part on:
An arrest not leading to a conviction (except in some circumstances an unresolved arrest).
Participation in or completion of a diversion or deferral of judgment program.
A conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative.
A conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system.
A conviction that is more than seven years old (counted from the date of sentencing).
Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.
Information Prohibited on Employment Application
On an employment application, the employer may neither inquire about nor require applicants, potential applicants or employees to disclose the fact or details of any conviction history, unresolved arrest, or any of the above items.
Information Prohibited Until After First Live Interview or Conditional Job Offer
Separate from the employment application, the employer may neither inquire into nor require applicants, potential applicants or employees to disclose any conviction history or any unresolved arrest until after the first live interview (in person or via telephone, videoconferencing or use of other technology) or, at the employer’s discretion, until after a conditional offer of employment has been made.
Notice Posting and Distribution
The employer must post a notice created by San Francisco’s Office of Labor Standards Enforcement (OLSE) informing applicants and employees of their rights under the ordinance. The notice must be posted in English, Spanish, Chinese, and any language spoken by more than 5% of the employer’s San Francisco workforce.
The employer also must provide a copy of this notice to applicants and employees prior to making any inquiry into their conviction history.
Job Solicitations and Advertisements
The employer must state in all solicitations or advertisements for employment that are reasonably likely to reach persons seeking employment in San Francisco that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the ordinance.
The employer is prohibited from stating in any such solicitation or advertisement, either directly or indirectly, that a person with an arrest or conviction will not be considered for employment or may not apply.
In making an employment decision based on an applicant or employee’s conviction history, the employer must conduct an individualized assessment, considering only directly-related convictions, the time that has elapsed since the conviction, and any evidence of inaccuracy, evidence of rehabilitation or other mitigating factors.
Pre- and Post- Adverse Action
Prior to taking any adverse action based on the applicant or employee’s conviction history, the employer must provide the applicant or employee with a copy of the background check report (if any), and must notify the applicant or employee of the prospective adverse action and the items forming the basis for it.
If, within seven days after that notice is provided, the applicant or employee gives the employer oral or written notice of evidence of inaccuracy of the conviction history, or any evidence of rehabilitation or other mitigating factors, the employer must delay any adverse action for a reasonable period and reconsider the prospective adverse action in light of the information.
Further, upon taking any final adverse action based on the applicant or employee’s conviction history, the employer must notify the applicant or employee of the final adverse action.
Maintenance of Records
The employer must retain records of employment, application forms, and other pertinent data and records for a period of three years, and must allow the OLSE access to such records to monitor compliance with the ordinance.
The employer may not interfere with, restrain, or deny the exercise of any right protected under the ordinance, and may not retaliate against applicants and employees for exercising such rights.
San Francisco employers who are subject to this ordinance when it becomes operative on August 13, 2014, should review their job advertisements, employment applications, hiring policies and practices, and record retention programs to confirm they are in compliance.
In addition, while the San Francisco ordinance likely is among the more restrictive in the nation, several other jurisdictions also have restrictions of this nature and the list is growing. Given the patchwork of laws now in place and the anticipation that additional laws are likely to emerge, employers should consider taking a holistic approach in lieu of viewing this as involving only one jurisdiction or only the format of their employment application forms.
Among other things, employers should consider consulting with counsel before inquiring into (on job application forms or otherwise), or using an applicant or employee’s criminal history in connection with a hiring or employment decision.