San Francisco Enacts Ordinance Restricting Employers’ Ability to Ask About and Use Criminal History

by Davis Wright Tremaine LLP

Effective Aug. 13, 2014, a new San Francisco ordinance prohibits private employers and city contractors from asking job applicants about their criminal history until after the first interview. The Fair Chance ordinance also specifically prohibits employers from asking about certain criminal offenses at any time, and restricts how criminal history information may be considered and acted upon in hiring and employment decisions. The ordinance applies to private employers with at least 20 employees, regardless of location; however, the physical location of the employment or prospective employment of an individual as to whom the ordinance applies must be in whole, or in substantial part, within the City and County of San Francisco. Part-time, seasonal, contract, or full-time applicants/employees are covered by the ordinance.

Laws prohibiting employers from asking jobseekers to disclose their criminal history on the initial job application form are referred to as “ban the box” laws and have been gathering momentum across the U.S. Currently, such laws exist in some form in 10 states and more than 50 cities nationwide. Four states: Hawaii, Massachusetts, Minnesota, and Rhode Island; and four cities: Philadelphia, Newark, Seattle, and Buffalo, apply their “ban the box” policies to private employers. Click here to view our advisory on the Seattle ordinance.

San Francisco’s ordinance prohibits covered employers from ever asking or considering in an employment decision: (1) arrests that did not lead to convictions, unless charges remain pending; (2) completion of a diversion or deferral of judgment program, (3) sealed or juvenile offenses, (4) convictions that are more than seven years old from the date of sentencing; and (5) criminal offenses other than felonies or misdemeanors, e.g., traffic or civil infractions.

Employers may only ask about and consider criminal history information after the first live interview (via telephone, videoconferencing, use of other technology, or in person) or, at the employer’s discretion, following a conditional offer of employment. Before any such inquiry, applicants or employees must be provided with a notice advising them of their rights under the ordinance.

While the ordinance allows certain inquiries about convictions to be made by employers, strict restrictions are placed on how the information obtained may be used. Information obtained may be used in the decision-making process only if it has a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position. To make this determination, an employer must make an individualized assessment, considering whether the position offers the opportunity for the same or a similar offense to occur and whether circumstances leading to the conduct for which the person was convicted will recur, the amount of time that has elapsed since the conviction, and factors that might show rehabilitation or mitigating measures.

If an employer  decides to reject an applicant because of criminal history, it must notify the applicant in writing before a final decision is made and again after the decision is finalized. Applicants have seven days to provide notice of an error, rehabilitation, or other mitigating information. The employer must take reasonable time to evaluate the information and reconsider the proposed adverse action before taking final action.

The ordinance also imposes notice and posting requirements for employers. Covered employers must state in all job solicitation or advertisements that are “reasonably likely to reach persons who are reasonably likely to seek employment in [San Francisco]” that they will consider qualified applicants with criminal histories in a manner consistent with the ordinance. The ordinance prohibits retaliation against applicants or employees for exercising rights under the ordinance. There is a presumption of retaliation if the adverse action is taken against a person within 90 days of the exercise of a protected right. Employers must maintain records of employment, application forms, and other relevant records for at least three years.

San Francisco’s Office of Labor Standards Enforcement (OLSE) is charged with administering and enforcing the ordinance. The OLSE’s review of complaints is limited to the employer’s adherence to procedural, posting, and record-keeping requirements. The OLSE will not review or evaluate an employer’s stated reason for denying employment, but will examine whether an employer failed to conduct the individualized assessment required by the ordinance  The OLSE may issue administrative penalties of no more than $50.00 for each employee or applicant as to whom the violation occurred or continued (no more than $100.00 for each employee for subsequent violations). For any first violation, or any violation within 12 months of Aug. 13, 2014, the OLSE must issue warnings and notices to correct, and offer the employer/contractor technical assistance on how to comply with the requirements of the new ordinance. While applicants/employees have no private right to sue in court under the ordinance, the city may bring a civil action in court and seek civil remedies, including reinstatement of the employee, back pay, benefits, and attorneys’ fees and costs.

Employers with 20 or more employees should consider taking the following steps now to prepare for the effective date of the ordinance on Aug. 13, 2014:

  1. Assess and determine whether the current job applications comply with all state and local laws where the employer operates.
  2. Review employment policies, job descriptions, job posting templates, and notices of adverse decisions to ensure compliance with the ordinance, and similar state or local laws.
  3. Adhere to the requirements of the federal Fair Credit Recording Act and California state equivalent, as well as any other federal, state, and local requirements, before conducting background checks and taking adverse action against applicants or employees based on their criminal history. Employers should also consider clarifying with background check providers what information should not be collected or reported in certain jurisdictions to avoid non-compliance with “ban the box” ordinances.
  4. Establish a protocol to conduct individualized assessments of job applicants/employees with criminal histories, and consider how and when to review these decisions with inside or outside counsel.
  5. Establish procedures to comply with individual notice, posting, and record-keeping obligations imposed by the ordinance.
  6. Train human resource professionals and hiring managers about the ordinance and its requirements. Employers may want to consider designating a particular manager or HR professional to be the point person through which all requests are made and evaluated, and to whom all questions are directed.
  7. Stay tuned for issuance of the OLSE poster and notice form before Aug. 13, 2014.
  8. Stay informed concerning ongoing guidance from the OLSE.

A copy of the ordinance can be found here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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