Recently, the San Francisco Board of Supervisors passed amendments to the city’s 2014 Fair Chance Ordinance (FCO), which will expand upon the State’s “ban the box” initiative by further limiting an employer’s ability to obtain and use information about an applicant’s criminal history.
The amendments will go into effect on October 1, 2018 and will affect all employers with five or more employees nationwide that have at least one employee who works on average 8 or more hours per work in San Francisco. This expands on the existing ordinance which was limited to city-based employers with twenty or more employees nationwide.
Expansions to Existing Law
While the majority of the amendments are designed to bring the city’s outdated ordinance into alignment with the State’s new ban-the-box law, one amendment goes further and will prohibit employers from considering any convictions for crimes that have since been decriminalized regardless of when the conviction occurred. As an example of such decriminalized activity, the amendments specifically reference certain offenses for non-commercial use and cultivation of marijuana that were recently decriminalized under state law.
City employers are currently prohibited from inquiring about or basing employment decisions on convictions for decriminalized offenses that are 7 years old or older, but with the amendments, employers will have additional administrative burdens with a blanket prohibition on considering any decriminalized offense that occurred at any time.
The amendments will also alter the point at which an employer, or potential employer, may ask the applicant about criminal convictions. Under current law, the employer must wait until after an in-person interview has taken place to ask about such information. With the amendments, employers will be prohibited from asking about such information until after a conditional offer of employment has been made.
The amendments revise the existing schedule of fines and will range from $500 per incident for the first violation, $1,000 upon the second violation and up to $2,000 for each violation thereafter. In addition, applicants and employees who believe their employer has violated the FCO may file a civil suit against their employer for such violations.
City employers and multi-state employers with operations or employees in San Francisco should review their hiring and background check procedures to ensure they comply with the amendment by the October 1 effective date. Additionally, employers should train their managers and hiring personnel on these changes to ensure they are aware of employers’ additional background screening obligations.
Employers nationwide should be aware that the subject of criminal history inquiries in the employment context has become a hot topic for governments at all levels (federal, state, and municipal) and should do their best to stay abreast of changes that affect their jurisdiction.