by Andrew J. Sommer and Alka Ramchandani
San Francisco’s new “ban the box” law, titled the Fair Chance Ordinance, will limit the timing and scope of inquiries into an applicant’s or employee’s criminal history when it takes effect August 13.
In addition to banning inquiries into criminal history on job applications, the ordinance also places significant restrictions on an employer’s ability to obtain and use that information in the hiring process.
The ordinance applies to private employers with 20 or more employees, regardless of their location. It regulates only employees whose duties are performed in whole or in substantial part within San Francisco city limits. The ordinance exempts employers if they are required by federal or state law or an agency implementing those laws to conduct background checks.
Generally, the ordinance prohibits employers from asking 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.
The ordinance 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 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 other than a felony or a misdemeanor.
Before an employer refuses to hire or takes any adverse action based on an applicant’s or employee’s conviction history, it must conduct an individualized assessment considering only a “directly related conviction,” defined as conduct having a direct and specific negative bearing on the 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 a similar offense to occur and whether circumstances leading to the conduct for which the person was convicted will recur. 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, it must provide a copy of the background check report or conviction report it is relying on, if any, and it must notify the applicant or employee of the prospective adverse action and the reasons for it.
The employer must then wait seven days for the applicant or employee to provide a response, and upon receiving that response, the employer must wait an additional reasonable time (five or more days) to reconsider.
For more information on San Francisco’s “ban the box” ordinance, see the August 8, 2014, issue of California Employment Law Letter.
Andrew J. Sommer and Alka Ramchandani are attorneys with Epstein Becker & Green, P.C., in San Francisco. Sommer can be reached at firstname.lastname@example.org. Ramchandani can be reached at email@example.com.