San Francisco recently enacted the Fair Chance Ordinance, which takes effect August 13, 2014. This new legislation restricts the ability of private employers to inquire about and consider criminal history information when hiring or promoting employees. The Ordinance applies to private employers located or doing business in the City and County of San Francisco with 20 or more employees. The Ordinance’s protections apply to applicants or employees whose place of employment is entirely or substantially located in San Francisco.
The Ordinance specifically prohibits the section of an application which previously required applicants to check boxes if they had a criminal history. Employers will not be permitted to make any direct or indirect inquiry regarding criminal history until after an initial job interview. This includes the use of a background check. After the interview but prior to conducting any criminal history inquiry, the employer must provide the applicant or employee with a written notice of their rights under the Ordinance.
Upon effectiveness of the Ordinance, employers will not be able to consider
- arrests that did not result in a conviction (unless an investigation or charges are currently pending);
- completion of a diversion program;
- sealed or juvenile offenses;
- offenses that are more than seven years old since the date of sentencing; and
- offenses that are not felonies or misdemeanors (such as infractions).
The Ordinance also requires that employers conduct individualized assessments of the nature of the offense as it relates to the specific job position. The offense may only be considered 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.”
If an employer decides not to hire or promote an employee based on criminal history, the employer must notify the applicant or employee in writing, provide a copy of the background check or criminal conviction report, and give the applicant or employee seven days to respond. After receiving a response, the employer must wait a reasonable time to reevaluate the information before making a final decision. If the employer still decides to not hire or promote the individual based on the criminal history information, he must notify the employee of that decision.
San Francisco’s Office of Labor Standards Enforcement may file a civil action and impose penalties against employers who violate the Ordinance.