On April 3, 2018, San Francisco amended its Fair Chance Ordinance, the city and county’s so-called “ban-the-box” legislation that limits how private employers can use an applicant’s criminal history in employment decisions. The amendments, which take effect on October 1, 2018, expand the scope and penalties of the San Francisco ordinance and add to the growing framework of ban-the-box legislation across California. The complete text of the amendment can be found here.

The amended San Francisco ordinance will apply to more employers and will provide stiffer penalties for violations, including for an employer’s first violation, which previously had no associated penalties. The amended ordinance also allows individual applicants and employees to sue and recover these larger penalties in civil actions, a change that may result in a greater number of enforcement actions against San Francisco employers. These and other significant changes to the ordinance are summarized in the following chart:

Pre-Amendment Fair Chance Ordinance Amended Fair Chance Ordinance (effective 10/1/18)

How many employees needed for ordinance to apply?

20 5
When can employer ask about criminal history? After either a live interview with the candidate or a conditional offer of employment Only after the employer makes a conditional offer of employment.
What is the penalty for violations? (1) No penalty for first violation; (2) Up to $50 penalty for second violation; and (3) Up to $100 penalty for subsequent violations

(1) Up to $500 for first violation;

(2) Up to $1,000 for second violation; and

(3) Up to $2,000 for subsequent violations

With regard to penalties, what if a violation impacts multiple people? For example, the application for a particular position asks all applicants their conviction history.

The violation is counted as a single violation The violation is counted as one violation as to each impacted person, but employer is assessed the same administrative penalty for each violation
Who can sue over violations? Only the San Francisco City Attorney

The employee or applicant whose rights have been violated

Who gets the penalty payments funds? The City of San Francisco

The person impacted by the violation

Are liquidated damages available? Yes, in a civil action in the amount of $50 to each person whose rights were violated for each day such violation was permitted to continue

Yes, in a civil action in the amount of $500 to each person whose rights were violated for each day such violation was permitted to continue

To illustrate the impact of these amendments, consider a covered employer’s second violation of the ordinance. Under the pre-amendment version of the ordinance, only the City Attorney could bring a civil action for the violation, the penalty for a second violation was limited to a maximum of $50, and the penalty was paid to the City of San Francisco. Under the amended version of the ordinance, either the City Attorney or the impacted employee or applicant could bring a civil action for the violation, the penalty for a second violation could be as much as $1,000, and the penalty would be paid to the employee or applicant whose rights were violated.

California’s Ban-the-Box Framework Is Likely to Grow Over the Coming Years

San Francisco and Los Angeles are currently the only California cities with so-called ban-the-box ordinances that apply to all private employers with a minimum number of employees. The California cities of Compton and Richmond also have their own ban-the-box ordinances, but those ordinances currently apply only to employers doing business with those cities.

The San Francisco and Los Angeles ordinances share similarities with California’s statewide ban-the-box law, which also applies to all private employers with a minimum number of employees. The following chart shows a few of the similarities and differences between the San Francisco, Los Angeles, and California legislation:

San Francisco

[Art. 49 of the San Francisco Police Code, as amended and effective 10/1/2018]

Los Angeles

[Art. 9, Ch. XVIII of the Los Angeles Municipal Code]

California

[Gov. Code § 12942]

How many employees needed for law / ordinance to apply?

5 10 5
When can employer ask about criminal history? Only after the employer makes a conditional offer of employment

Only after the employer makes a conditional offer of employment

Only after the employer makes a conditional offer of employment

Does the law / ordinance specify procedures for use of an employee or applicant’s criminal history?

Yes, the employer performs an individualized assessment, provides the applicant with notice, allows the applicant time to respond, reconsiders the decision in light of the applicant’s response, and provides the applicant notice of a final denial.

Yes, the employer performs a written assessment, provides the applicant with notice, allows the applicant time to respond, performs a reassessment based on the applicant’s response, and provides the applicant with a copy of the reassessment if the applicant is not hired.

Yes, the employer performs an individualized assessment, provides the applicant with notice, allows the applicant time to respond, and informs the applicant of the final denial in writing.
What is the penalty for violations?

(1) Up to $500 for first violation;

(2) Up to $1,000 for second violation; and

(3) Up to $2,000 for subsequent violations

(1) Up to $500 for first violation;

(2) Up to $1,000 for second violation; and

(3) Up to $2,000 for subsequent violations. Separate penalties for violations of notice and record retention requirements.

None specified.

With regard to penalties, what if a violation impacts multiple people? For example, the application for a particular position asks all applicants their conviction history.

The violation is counted as one violation as to each impacted person, but employer is assessed the same administrative penalty for each violation These “may be treated as separate violations” Not applicable.
Who can sue over violations? The employee or applicant whose rights have been violated The employee or applicant whose rights have been violated

The employee or applicant whose rights have been violated

Is the employee or applicant required to exhaust administrative remedies before filing a civil action?

Yes, the employee or applicant should first file a complaint with the Director of the Office of Labor Standards Enforcement

Yes, the employee or applicant should first report the violation to the Department of Public Works, Bureau of Contract Administration

Yes, the employee or applicant should comply with FEHA’s administrative procedure requirements
Who gets the penalty payment funds? The person impacted by the violation

The employee or applicant who brings a civil action. In an administrative action, penalties go to the City as an administrative fine but City may award up to $500 per violation to employee or applicant

Not applicable.

California’s ban-the-box law does not prevent other California cities and counties from enacting their own criminal background check legislation, and California employers should expect to see more local governments enacting similar measures over the next several years.