San Francisco Law Curtails the Use of Job Applicants’ Criminal Histories in Private Employment Decisions.
May 27, 2014 by Lisa Charbonneau
Effective August 13, 2014, San Francisco employers, city contractors, and city subcontractors may no longer use “check the box” type questions regarding criminal history on employment applications for San Francisco jobs. Under the new law, called the “Fair Chance Ordinance,” a candidate’s criminal history may only be considered after an employer holds a live interview or makes an initial job offer. We at Beeson, Tayer and Bodine (BT&B) agree with this progressive employment law hiring approach and provide a summary of the legal protections this law provides.
The Ordinance covers jobs in San Francisco and applies to employers doing business in San Francisco who have 20 or more employees (including the owner and regardless of the employees’ locations). The Ordinance does not apply to public employers, who as of July 1, 2013, are subject to California-wide legislation limiting the use of criminal history in employment.
After the initial job interview takes place or initial offer is made, the employer may inquire into the applicant’s criminal history. Employers may not make hiring decisions based on arrests that did not result in conviction (unless an investigation is ongoing), completion of a diversion program, expunged or juvenile offenses, offenses more than seven years old, or offenses that are mere infractions (i.e. not felonies or misdemeanors). The employer must make an “individualized assessment” of the applicant’s convictions and unresolved arrests and consider only that which directly relates to the applicant or employee’s ability to do the job. The employer must also consider how much time has passed since the conviction(s) occurred, any evidence of inaccuracy, and any evidence of rehabilitation.
If, after making the required individualized assessment, an employer decides to take adverse action based on criminal history information, the employer must provide the applicant with written notification of the decision, the basis of the decision, and a copy of the conviction report or background check that the employer reviewed. The applicant then has seven days to respond with evidence of mitigating factors, such as completion of rehabilitation programs or letters of recommendation. If the applicant responds, the employer then must take a reasonable amount of time to evaluate the response before making the final decision to take adverse action. The employer’s final decision must be in writing and must state that the decision was based on the candidate’s criminal history information.
The Ordinance is enforced through the San Francisco Office of Labor Standards Enforcement. The City may bring a civil action in court to obtain reinstatement and back pay.
Posters or notices advising employees of their rights under the Fair Chance Ordinance must be conspicuously posted at every work site in San Francisco, and copies of the poster or notice must be sent to each labor union that represents workers in the employer’s workplace(s).
We at BT&B will be following rulings associated with this new protection for employees and job applicants in San Francisco. BT&B is located in Oakland and the California state capital of Sacramento. With over 75 years of experience in union and employment law we are available to assist unions, employees and applicants to assess their administrative and legal options.
For those of you interested in more information about the rights of job seekers with criminal records, Bloomberg News did a summary of recent activity. In additions you might be interested in an initiative, Ban the Box, that you can follow on Twitter with a search of #banthebox.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.
