Insights
Publications

New San Francisco Law Restricts Employers’ Use of Criminal Background Checks

3/14/2014 Articles

San Francisco’s recently enacted Fair Chance Ordinance (a.k.a., the “Ban-the-Box Ordinance”) limits the use of criminal history information in pre-employment screening by San Francisco employers, contractors, and affordable housing providers.  Under the ordinance, which becomes operative on August 13, 2014, employers are prohibited from requiring applicants for San Francisco-based jobs to disclose any conviction history and from conducting a criminal background check until after the first live interview or after a conditional offer of employment. 

Who is subject to the new restrictions?
The ordinance protects applicants who are applying for jobs in San Francisco.  It applies to hiring decisions for San Francisco-based positions with private sector employers, and/or for work on city contracts and subcontracts, including those outside the city.  The ordinance covers employers located or doing business in San Francisco who employ 20 or more workers (regardless of location) and contractors hiring employees who would be performing work in furtherance of a contract within San Francisco on city contracts worth more than $5,000 in a fiscal year.

What is required and prohibited?
Employers must state in all covered job solicitations and employment advertisements that they will consider for employment qualified applicants with criminal histories.  Other than pending arrests still under investigation, employers may never ask applicants or employees about arrests not leading to a conviction; participation in or completion of a diversion or a deferral of judgment program; dismissed or expunged convictions; juvenile convictions or adjudications; convictions more than seven years old; or offenses other than a felony or misdemeanor.  Following the first live interview or a conditional offer of employment, employers may ask about conviction history and conduct a criminal background check, excluding the prohibited material just mentioned, but applications cannot request this information. 

In addition, employers are required to post a notice from San Francisco’s Office of Labor Standards Enforcement (OLSE) that details applicant and employee rights under the ordinance.  A copy of that OLSE notice must be given to an applicant or employee prior to conducting a criminal background check.

Once a past conviction has been disclosed, employers must conduct an individualized assessment, considering whether the position offers the opportunity for the same or a similar offense to occur, how old the conviction is, and any mitigating factors.  Before taking an adverse action against an applicant or employee based on criminal history, the employer must provide the person with their criminal history report, notice of the prospective adverse action, and the specific basis for the action.  The applicant/employee then has the right to offer evidence concerning the inaccuracy of their conviction, of rehabilitation, and other mitigating factors.  If the employer decides to proceed with the adverse action, it must provide final notice of the action.  The ordinance does not require employers to give preference to applicants with a criminal history, and employers retain discretion to choose the most qualified and appropriate candidates.  Retaliation for exercising any rights under the ordinance is prohibited.  Employers must keep records relating to the ordinance, including application forms, for three years. 

What are the penalties for violations?
First violations and violations during the initial year the ordinance is in effect will result in warnings and notices to correct.  Second violations will result in a $50 administrative penalty for each employee or applicant, increasing to $100 per employee or applicant for subsequent violations.  In addition, San Francisco may bring a civil action against an employer, and relief could include reinstatement, back pay, payment of benefits or salary unlawfully withheld, additional liquidated damages of $50 per employee whose rights were violated, injunctive relief, and attorneys’ fees and costs.

Is this a trend?
As explained in the ordinance, many cities, counties and states have passed laws regulating employers’ use of criminal background checks.  Employers should consult with counsel before asking questions of applicants or employees regarding their criminal history.

Firm Highlights

Event

Equal Pay Data Reporting, an Asset for the Strategic Employer

Join Holly Sutton and co-speaker, Erin Hastings, in the discussion on "Equal Pay Data Reporting, an Asset for the Strategic Employer." California’s recently passed SB973 requires certain employers to collect and report the number...

Read More
Publication

California Expands Family and Medical Leave Law to Cover Small Employers

California Governor Gavin Newsom recently signed SB 1383, which expands employees’ leave entitlements under California’s Family Rights Act and New Parent Leave Act. Effective January 1, 2021, these leave provisions will apply to employers with...

Read More
Publication

California Employers Face Various New Laws in January 2021

The California Legislature passed and Governor Newsom signed several new laws covering topics ranging from COVID-19 to leaves of absence to data reporting. Most of these laws take effect January 1, so now is a...

Read More
Publication

Employment Law Updates for Nonprofits in the New Normal

Farella's Nonprofit Education Series features Rebecca Stephens and Jaya Bajaj discussing "Employment Law Updates for Nonprofits in the New Normal." Nonprofit organizations are subject to both state and federal employment laws and regulations. The...

Read More
Publication

The Election Season Is Upon Us: Guidance for Managing Political Expression in the California Workplace

In a year of extraordinary events, this election has been more divisive and controversial than any other in recent history. Many employers are grappling with how they should manage political expression in the workplace...

Read More
News

52 Farella Braun + Martel Attorneys Listed in The Best Lawyers in America© 2021

Read More
Publication

Guidance on Directive to Defer Payroll Tax Obligations Leaves Unanswered Questions

On August 8, 2020, the President directed the Secretary of the Treasury to authorize the deferment of certain payroll tax withholding, depositing, and payment obligations otherwise incurred on wages and compensation paid between September...

Read More
News

Farella Braun + Martel Ranked Among “Best Law Firms” by U.S. News & World Report and Best Lawyers

SAN FRANCISCO, November 5, 2020: Farella Braun + Martel earned national and regional rankings across a number of practice areas in the U.S. News & World Report and Best Lawyers® release of the “Best...

Read More
News

Farella Braun + Martel Elevates Five to Partner

Read More
News

Benchmark Litigation 2021 Ranks Farella Among Top Litigation Firms in California

SAN FRANCISCO, October 12, 2020: Farella Braun + Martel continues to be ranked among the top litigation firms in California in the  Benchmark Litigation  2021 guide. Farella was ranked “Highly Recommended” for Dispute Resolution...

Read More