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While the majority of the amendments are designed to bring the city’s outdated ordinance into alignment with the State’s new ban-the-box law, one amendment goes further and will prohibit employers from considering any convictions for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. Continue reading San Francisco Amends “Fair Chance Ordinance” to Expand On California’s Ban-the-Box Law
Effective June 6, 2018, Washington employers will no longer be permitted to ask applicants about arrests or convictions, or to receive information through a criminal background check, prior to making a determination as to whether the applicant is otherwise qualified for a position. This new law is known as the Fair Chance Act (the Act).
Prohibited Activities Under the Act
Under the Act, an employer is prohibited from doing any of the following before making an initial determination that an applicant is otherwise qualified for the position:
- Asking orally or in writing about the applicant’s criminal record;
- Receive information through a criminal history background check; or
- Otherwise obtaining information about the applicant’s criminal record.
For purposes of the Act, an applicant is “otherwise qualified for the position” when the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.
The Act also limits the content of an employer’s advertisements for job openings and hiring policies by specifically prohibiting:
- Advertising employment openings in a way that excludes people with criminal records from applying (e.g., ads that state “no felons” or “no criminal background”); and
- Maintaining any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.
o Such prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
Activities and Employers Not Covered by the Act Continue reading Washington Joins the “Ban the Box” Bandwagon
Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.
Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:
- Take care when using an Employee Referral Program in your recruitment process.
- Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
- If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
- Look at the numbers.
- The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
- Check your hiring ratio’s.
- One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
- More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.
Additional Information For Employers
A new amendment to Louisiana Revised Statutes §15:553 further restricts the types of jobs that may be held by certain registered sex offenders in the state of Louisiana.
Under the old law, a registered sex offender could not hold the following jobs:
- An operator of any bus, taxicab, or limousine for hire;
- A service worker who goes into a residence to provide any type of service
- An operator of any carnival or amusement ride (if the person’s offense involved a minor child).
The amendment expands the above list to include employment as a door-to-door solicitor, peddler, or itinerant vendor selling any type of goods or services including magazines or periodicals or subscriptions to magazines or periodicals.
The above-listed hiring restrictions pertain to an individual who is required to maintain sex-offender registrations under Louisiana law on or after August 15, 2010.