By Soo Cho, Michele Haydel Gehrke, and Pamela Devata
Not only is complying with California’s labor laws challenging, operating a business in San Francisco can be particularly challenging due to a number of San Francisco city ordinances regulating employers. Most recently, on February 17, 2014, Mayor Ed Lee signed the “Ban the Box” ordinance. While the ordinance sounds as if it belongs in the same category as other San Francisco environmental ordinances banning the use of plastic bags, this ordinance, formally known as the “Fair Chance Ordinance,” actually relates to what an employer can ask about relating to criminal history and when an employer can conduct a criminal background check in hiring. San Francisco is joining the ranks of many other states and municipalities who have recently passed similar restrictions “banning” the criminal history box (i.e., HI, MA, MN, RI, Newark, NJ, Seattle, WA, etc.). See our publications relating to these trends here and here.
The Fair Chance Ordinance requires private employers in San Francisco who employ 20 or more employees (in any location) to limit the use of criminal background checks during the hiring process. “Employers” is defined broadly to include not only private employers in San Francisco, but also employment agencies, contractors and subcontractors (with performance contracts in excess of $5,000 and for longer than 30 days), and housing providers.
Employers are barred from asking about criminal history or conducting a background check until the employer determines that the individual’s qualifications meet the requirements for the position. Specifically, the law requires removal of the box or question on an employment application asking “Have you ever been convicted of a crime?” The ordinance notes that an estimated one of four California adults has an arrest or conviction record and seeks to limit the “unnecessary and significant barriers to employment” created by such application questions. This is similar to the reasoning espoused in Equal Employment Opportunity’s Enforcement Guidance on the Use of Arrest and Criminal Records in the Hiring Process, which can be found here.
Employers in San Francisco may ask about a candidate’s conviction history after the first live interview, but must provide the candidate with a notice of rights (an applicable notice of rights will be published by the city within the next six months). Employers are also prohibited from considering (1) any arrests that do not lead to convictions, (2) offenses other than felonies or misdemeanors, (3) convictions more than seven years old, (4) an applicant’s participation in or completion of a diversion or deferral of judgment program, and (5) sealed, inoperative or juvenile convictions.
Similar to the federal requirements under the Fair Credit Reporting Act, 15 U.S. C. Sec. 1681 et. seq. and state requirements under the California Investigative Consumer Reporting Agencies Act, Cal. Civ. Code Sec. 1786 et. seq, the ordinance also provides that if an employer does run a background check and intends to take an adverse action against the candidate based on that information, the employer must: Continue Reading