Employment Law Alert: San Francisco’s Ban the Box Ordinance

Effective August 13, 2014, San Francisco’s Fair Chance Ordinance prohibits employers from asking about a job applicant’s criminal history, including inquiries on an employment application form.

This prohibition, often called a “ban the box” provision, applies to private employers, city contractors, and subcontractors with 20 or more employees. Covered employers may ask about an applicant’s criminal history after the first interview or after a conditional job offer.

Update: A required poster that provides notice of the ordinance has been issued by the city’s Office of Labor Standards Enforcement. It is available through the OLSE’s website.

The notice is currently available in English only, but will be available in Spanish, Chinese, Tagalog, Russian, Thai, and Vietnamese before the ordinance takes effect. The OLSE will be publishing FAQs related to employers’ obligations under the new ordinance.

Employers are required to post the notice and to send a copy to any labor union with which they have a collective bargaining agreement.

The ordinance also prohibits employers from inquiring about or taking any adverse action based on the following information:

• An arrest that did not lead to a conviction
• 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 juvenile conviction
• A conviction that is more than 7 years old
• Information about an offense other than a felony or misdemeanor (e.g., an infraction)

Before making a criminal history inquiry, the employer must provide the applicant or employee with a copy of a notice that will be developed by the OLSE. Employers must conduct an individualized assessment of an individual’s criminal history, taking into consideration:

• “Directly-Related Convictions” only (defined as a conviction that has a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities of the job)
• The time that has elapsed since the conviction
• Any evidence of inaccuracy, rehabilitation, or mitigating factors

If an employer decides to base an adverse employment action on a person’s criminal history, it must give the person a copy of the background check report along with information about the items on which the adverse action is based. The employer must allow 7 days for the individual to give notice of inaccuracy, rehabilitation, or other mitigating factors; and must reconsider the adverse action in light of any information provided. If an employer decides to proceed with the adverse action, notice must be provided to the individual.

The ordinance also prohibits employers from expressing in any job advertisement that a person with an arrest or conviction will not be considered for employment.

Our updated compliance calendar on California Employer Advisor Online includes this posting requirement due date, as well as more upcoming deadlines for 2014. For more information, click here.