News & Updates: San Francisco Amends Its Ban-The-Box Law To Align With State Law

Effective October 1, 2018, the City and County of San Francisco has amended its Fair Chance Ordinance (FCO) so that it is better aligned with California law.

As of January 1, 2018, California employers with 5 or more employees are barred from asking for criminal history information on employment applications and from inquiring about or considering criminal history at any time before a conditional offer of employment is made. San Francisco has now amended the FCO to make it consistent (in most respects) with California law.

• The FCO now applies, like the California law, to employers with 5 or more employees (rather than twenty employees).
• Before the amendments, San Francisco employers were permitted to ask about an applicant’s criminal history either after a live interview or a conditional offer. The amendments now require that as under state law, employers may not ask about criminal history until after a conditional job offer.
• The Office of Labor Standards Enforcement (OLSE), the San Francisco agency that enforces the FCO, may now issue increased penalties for violations: $500 for the first violation; $1,000 for the second violation; and $2,000 for any subsequent violations. If any violations impact more than one applicant, each applicant may obtain penalties.
• Individuals now have the right to file a civil lawsuit against an employer under the FCO, so long as the aggrieved individual first files a complaint with the OLSE and exhausts administrative remedies.

It is important to remember, however, that even as amended, the FCO is not perfectly aligned with California law. For example, the FCO still places greater restrictions on the use of criminal history information by San Francisco employers, and bars them from considering convictions that are more than seven years old, even after a conditional offer has been made. Additionally, the amendments added a new category of information that employers may never consider: “A Conviction that arises out of conduct that has been decriminalized since the date of the Conviction,” which includes certain marijuana offenses. This amendment means that if the background check reveals a marijuana conviction (which in any event may not be considered if it is more than two years old under California law), San Francisco employers will have to evaluate whether the conviction was decriminalized after “the date of the Conviction,” which the law defines as the date of sentencing.

What should employers do?

All San Francisco and California employers should review their background check process.

First, California employers should not conduct a background check until a conditional offer of employment is made.

Second, employers who use background check providers should make sure that these providers are complying with the procedures required by the federal Fair Credit Reporting Act and the California Investigative Consumer Reporting Act. These laws require employers to provide individuals with notices of their rights when advising employees of possible adverse actions based on a criminal history report.

Third, California employers should carefully review the forms and processes of background check companies, as many companies may have notices that are not in compliance with local, state, and federal laws, and, for example, may be providing arrest or criminal history information (such as convictions that are more than 7 years old) on which an employer legally may not rely.

Finally, if a background check reveals a potentially disqualifying criminal conviction, employers should consult with legal counsel to ensure compliance with local, state, and federal laws in doing an individualized assessment in determining whether or not to hire that applicant.