California Corner: San Francisco "Bans the Box" for Private Employers
On February 14, 2014, Mayor Ed Lee signed the San Francisco Fair Chance Ordinance (the Fair Chance Ordinance), also known as "ban the box" legislation that requires employers to remove check-this-box questions pertaining to criminal history from their employment applications. The Fair Chance Ordinance, which goes into effect on August 13, 2014, applies to private employers with 20 or more employees in San Francisco as well as to city contractors and subcontractors. It is intended to give ex-offenders a chance to display their qualifications in the hiring process before being asked about their criminal records. San Francisco is the ninth jurisdiction to pass such an ordinance affecting private employers, following the states of Hawaii, Massachusetts, Minnesota and Rhode Island, and the cities of Buffalo, New York; Newark, New Jersey; Philadelphia, Pennsylvania; and Seattle, Washington.
Section 4904(a) of the Fair Chance Ordinance prohibits employers from inquiring into or considering any of the following information at any time during the hiring process or employment:
An arrest not leading to a conviction (except an "unresolved arrest" that is the subject of an ongoing criminal investigation or trial);
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 conviction or other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system;
A conviction that is more than seven years old (the date of conviction being the date of sentencing); and
Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.
The Fair Chance Ordinance allows employers to inquire into convictions and unresolved arrests either after the first "live" interview (whether via telephone, video or other technology, or in person), or at the employer's discretion, once a conditional offer of employment has been made. Before making any such inquiry, however, the employer must provide the applicant or employee notice of his or her rights under the Fair Chance Ordinance. In addition, prior to obtaining a copy of a background check report, the employer must comply with all state and federal requirements to provide notice to the applicant or employee that such a report is being sought, including the California Investigative Consumer Reporting Agencies Act (California Civil Code sections 1786 et seq.) and the Federal Consumer Reporting Act (15 United States Code sections 1681 et seq.). Once the employer obtains information about the applicant or employee's conviction or unresolved arrest after the initial interview, the employer must conduct an individualized assessment, considering only convictions directly related to the job at issue, the time that has elapsed since the conviction, any evidence of inaccuracy and rehabilitation, and any other mitigating factors. In short, employers should not reflexively refuse to hire an individual with a prior conviction, where the offense bears no rational relation to the individual's ability to perform the job.
If the employer intends to make an adverse employment decision based on the applicant or employee's conviction history, the employer must provide the applicant or employee with a copy of the background check report, if any, and notify the applicant or employee of the anticipated adverse action and the items forming the basis for same. The applicant or employee then has seven days to provide verbal or written notice to the employer of the evidence of inaccuracy of the criminal history items or to submit evidence of rehabilitation or other mitigating circumstances.
In addition to the Fair Chance Ordinance, San Francisco employers must also comply with the other California laws that limit their right to ask about or consider certain types of convictions, such as marijuana-related convictions and those that have been judicially dismissed or ordered sealed. Given the myriad laws governing the use of criminal background information, covered employers and contractors in San Francisco should review their hiring policies to ensure compliance and train management to consider criminal history only in a manner that is job-related and consistent with business necessity.