Act Now Advisory: San Francisco's Fair Chance Ordinance - New Workplace Law Regulates Criminal Background Inquiries

by Epstein Becker & Green

This last month, San Francisco joined several cities and states by adopting "ban the box" legislation called the Fair Chance Ordinance ("Ordinance"), which limits the timing and scope of inquiries into an applicant's or employee's criminal history. The Ordinance not only bans any inquiry into criminal history information on job applications, but places significant additional restrictions on an employer's ability to obtain and use that information in the hiring process.

On February 14, 2014, San Francisco Mayor Edwin Lee signed into law the Ordinance, which applies to private employers with 20 or more employees, regardless of their location. The Ordinance regulates only those employees whose duties are performed in whole or in substantial part within San Francisco city limits. The Ordinance has a delayed effective date of August 13, 2014, and will be enforced by the San Francisco Office of Labor Standards Enforcement ("OLSE").

Some employers will be exempt from the Ordinance to the extent that they are required by federal or state law, or an agency implementing these laws, to conduct background checks. For example, despite the Ordinance, a community care facility would continue to conduct expansive background checks of applicants consistent with state law.

The City Deconstructs the Traditional Hiring Process

Generally, the Ordinance prohibits employers from requesting an applicant to disclose on an employment application or during a first interview (regardless of whether the interview is conducted via telephone, through the use of web technology, or in person) any details concerning a conviction or unresolved arrest. Employers may inquire about an applicant's criminal history only after the first interview or after a conditional offer of employment.

This Ordinance also prohibits employers from at any time inquiring into or taking an adverse action based on any of the following:

  • an arrest not leading to a conviction;
  • participation in or completion of a diversion or a deferral of judgment program;
  • a conviction that has been judicially dismissed, expunged, or otherwise rendered inoperative;
  • a juvenile conviction;
  • a conviction that is over seven years old from the date of sentencing; or
  • an offense that is other than a felony or a misdemeanor.

It should be noted that California law already prohibits inquiries into certain categories of criminal history, but the Ordinance goes much further, particularly in its focus on when the conviction occurred. The Ordinance requires an employer to provide notice to applicants or employees of their rights prior to any inquiry into their conviction history. This notice will be published and disseminated by the OLSE.

Individualized Assessment Is Required Before Taking Adverse Action

Before an employer refuses to hire or takes any other adverse action based on an applicant's or employee's conviction history, the employer must conduct an individualized assessment considering only a "directly-related conviction," defined as conduct having a direct and specific negative bearing on that person's ability to perform the duties or responsibilities necessarily related to the job. One consideration is whether the position offers the opportunity for the same or similar offense to occur and whether circumstances leading to the conduct for which the person was convicted will reoccur. This individualized assessment also requires consideration of the time that has elapsed since the conviction and any evidence of inaccuracy, rehabilitation, or other mitigating factors.

If, after conducting the assessment, the employer intends to take an adverse action based on the applicant's or employee's conviction history, the employer must provide a copy of the background check report or conviction report that it is relying on, if any, and it must notify the applicant or employee of the prospective adverse action and the reasons for such action.

The employer must then wait seven days for the applicant or employee to provide a response, either orally or in writing, regarding any evidence of inaccuracy, rehabilitation, or mitigating factors. Upon receiving such response, the employer then must wait an additional reasonable time (five or more days) to reconsider the prospective adverse action in light of the new information. After the employer has allowed the employee adequate time to respond to the prospective adverse action, the employer may take a final adverse action based upon the conviction history but must notify the employee that the final adverse action was taken because of the conviction history.

The procedure for the individual assessment will be scrutinized by the OLSE, and the employer should take due care in documenting each step of this process. Notably, however, the Ordinance prevents the OLSE from finding a violation based on an employer's decision that an applicant's or employee's criminal history involves a "directly-related conviction."

Anti-Retaliation Protections

The Ordinance makes it unlawful for an employer to retaliate against an employee or applicant for exercising protected rights under the Ordinance. Significantly, a presumption of retaliation is created if an adverse action is taken against an employee or applicant within 90 days of an exercise of a right under the Ordinance. This creates fertile ground for challenging decisions not to hire or promote through administrative claims before the OLSE, or private actions for common law wrongful termination based on the alleged infringement of rights under the Ordinance.

Disclosure, Posting, and Notice Requirements

Similar to other San Francisco ordinances, the Ordinance contains notice and disclosure requirements. Yet, the Ordinance goes one step further and requires a covered employer to state in all job solicitations or advertisements that the employer will consider qualified applicants with criminal histories in a manner that is consistent with its provisions.

The Ordinance also requires employers to post a notice published by OLSE that informs applicants and employees of their rights under the Ordinance. The notice must be published in English, Spanish, and Cantonese/Mandarin, and any other languages spoken by more than 5 percent of the employer's San Francisco workforce. Employers must post these notices in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer's control that is frequently visited by employees or applicants. An employer also will need to distribute notices to any labor union representing its workers.

Recordkeeping Requirements

Employers are also required to retain for a period of three years employment application forms, interview notes, criminal background reports, and applicant responses to inquiries and prospective adverse actions. Employers are required to provide information to the OLSE on an annual basis to verify its compliance with the Ordinance. Any failure to maintain these documents will result in the presumption that the employer was not in legal compliance.


As noted, the Ordinance precludes the OLSE from questioning the employer's decision to not hire an individual because of his or her properly considered conviction history. However, the notice, documentation, and procedural requirements will be highly regulated by the OLSE.

For any violation within the first 12 months following August 13, 2014, the OLSE may issue warnings and notices to correct the violation. For a second violation, the OLSE may impose an administrative penalty of no more than $50 for each employee or applicant as to whom the violation occurred. Thereafter, each subsequent violation will result in a $100 penalty payable to the City. If multiple employees or applicants are subject to the same procedural violation at the same time, the violation will be treated as a single violation.

The City may bring a civil action against employers seeking legal or equitable relief, including reinstatement, back pay and benefits, and injunctive relief, as well as reasonable attorneys' fees and costs.

What Employers Should Do Now

The Ordinance significantly impacts all aspects of the hiring process. Therefore, covered employers should do the following:

  • Review and, if necessary, revise your hiring policies and practices, including job applications, job postings, and disclosure and authorization forms, to make sure that they comply with the Ordinance.
  • Post and distribute all required notices published by the OLSE.
  • Develop strict policies and protocols for conducting interviews, inquiring into criminal history, conducting individualized assessments, obtaining information that mitigates the conviction history of an applicant, and retaining documents.
  • Train hiring personnel as to what questions may be asked during the initial interview and how to process an individualized assessment when evaluating an applicant's conviction history.

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.