San Francisco “Bans The Box” For Private Employers

by Hirschfeld Kraemer LLP
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As we first discussed here, “ban the box” state laws and local ordinances are picking up traction nationwide.  Measures vary in scope and nature, but the typical policy bars employers from asking for criminal history information on job applications.  Instead, the employer may only obtain criminal background information after they determined the candidate is suited for the job.  Ten states and numerous municipalities have already banned the box for private employers, including Minnesota, Massachusetts, and Newark, New Jersey.  Now, the San Francisco Board of Supervisors has joined this growing group in passing the “Fair Chance Act,” an ordinance amending the City’s Police Code.  Mayor Ed Lee approved the ordinance on February 14, 2014.

Who does it cover? The ordinance covers private employers with 20 or more employees regardless of the employees’ location.  However, it only extends to employment situations that are located “in whole or in substantial part” in San Francisco.  Certain city contractors and subcontractors have additional obligations not discussed herein.  Although much of the focus of the ordinance is directed to applicants for employment, the ordinance applies to both applicants and current employees.

How does it change job applications and interviews? With respect to employment (the ordinance also extends to housing decisions not addressed here), the ordinance provides that a job application cannot ask about one’s criminal history.  The employer is also barred from asking about criminal history at the beginning of the hiring process.  Instead, employers may only inquire about an applicant’s criminal history or conduct a criminal background check after the first live interview (“live interview” is defined as via telephone, videoconferencing, use of other technology, or in person), or, at the employer’s discretion, following a conditional offer of employment.

What does it say about considering an individual’s criminal history? Once the employer meets the above timing requirements, then it may ask about criminal history and conduct a background check that complies with California’s consumer rights law.  Upon receiving criminal history information, such as a conviction or an arrest that is undergoing an active criminal investigation but has not yet been resolved, the employer must follow a process designed, according to the legislative history, to “promote relevance and inclusion.”  This process requires the employer to conduct an “individualized assessment” and consider only convictions or unresolved arrests that are “directly related” to the employment position.  To determine if a conviction or unresolved arrest is directly related, the employer should evaluate whether the conduct leading to the conviction or unresolved arrest has a “direct and specific negative bearing on the person’s ability” to perform the job’s duties, or if the position “offers the opportunity for a same or similar offense” to occur on the job.  Another factor to evaluate is how much time has elapsed since the conviction.

The individual must be given the chance to present evidence that the criminal history information is inaccurate, or provide information regarding rehabilitation and mitigating circumstances.  Examples of rehabilitation described in the ordinance include a record of post-conviction educational attainment, employer recommendations, and completion of or active participation in an alcohol or drug treatment program.  The employer should allow the individual to explain mitigating circumstances that may have contributed to the conviction, like a history of untreated mental illness or substance abuse, or physical or emotional abuse.

Notice of Rejection or Adverse Action.  If the employer plans to reject or take any other adverse action against the applicant or employee based on criminal history information, the employer must provide a copy of the background check report and notify the individual of the items forming the basis for the prospective adverse action.  The individual then has seven days to provide evidence of rehabilitation or mitigating factors.  The employer shall delay moving forward with an adverse action, such as rejecting an applicant, for “a reasonable period” after receiving the evidence of mitigating factors to contemplate if those reasons compel a different decision.

No Retaliation.  An employer cannot refuse to hire, discharge, or otherwise retaliate against those who have exercised their rights, including the right to file an administrate complaint, notify anyone about an alleged violation of the ordinance, cooperate with the City’s administrative agency, or oppose any practice that is unlawful under the ordinance.

Notice in Job Advertisements.  In all advertisements and solicitations for applicants who are reasonably likely to seek employment in San Francisco, the employer must state that it will consider qualified applicants with criminal histories in a manner consistent with the ordinance.

Enforcement. The San Francisco Office of Labor Standards Enforcement (OLSE) is charged with enforcing the ordinance.  The OLSE will not second guess an employer’s finding that a conviction was directly related to the job, but will check if the employer conducted the individualized assessment.  If it finds violations, the OLSE will first give a warning and allow the employer a chance to correct the issue.  Thereafter, an initial penalty is $50 per violation and $100 for subsequent violations (multiple applicants impacted by the same procedural violation, such as one noncompliant job application circulated for the same position, is treated as a single violation rather than multiple violations).  The ordinance permits resolution by an administrative hearing and administrative appeals process.  Lastly, the OLSE may refer non-compliance to the City Attorney for civil action in superior court.  Civil actions allow for back pay, reinstatement, penalties, injunctive relief, attorneys’ fees, and costs.

Recordkeeping and Poster Requirements.  Employers must maintain records of employment decisions to allow monitoring for compliance.  A notice informing persons of their rights under this ordinance must be posted in the workplace in English, Spanish, Chinese and all languages spoken by more than 5% of the City’s workforce.  The OLSE is responsible for designing a compliant poster by August 2014.

Effective Date.  The ordinance is prospective only and will become operative in August 2014.

Exceptions and Existing State Law.  The ordinance does not preempt any other federal or state law or regulation that may contain conflicting requirements.  Separately, under Senate Bill 530 signed in October 2013 that amended the state’s Labor Code, all public sector employers in California are prohibited from asking about criminal records on employment applications as of July 1, 2014.  Public sector employers must review an applicant’s qualifications before inquiring about their conviction history.

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