On February 14, 2014, the City of San Francisco joined the wave of jurisdictions with “ban-the-box” legislation and passed sweeping amendments to local ordinances designed to significantly restrict the ability of covered employers to inquire into, and use, criminal records in their hiring practices.

The new local ordinances impact employers with more than 20 employees that are located or do business in the City of San Francisco. In addition to “banning-the-box,” the new San Francisco legislation also imposes a host of additional new restrictions on the use of criminal history for employment purposes, including prohibiting employers from inquiring into an applicant’s criminal history on the employment application or during the first live interview. 

Thereafter, employers are only permitted to inquire about misdemeanors and felony convictions that occurred within seven years of the inquiry and can only make the inquire about providing the applicant with notice of (a) the criminal history employers are prohibited from considering, (b) the restrictions on employer’s inquiry into criminal history, (c) the individual’s right to submit information about rehabilitation and mitigating factors, and (d) contact information for the Office of Labor Standards Enforcement to report suspected violations. Employers are prohibited from asking about arrests for which there are no pending charges, completion of any diversion programs, sealed and juvenile offenses, and any other infractions that are not misdemeanors or felonies. Consideration of an applicant’s criminal history is only permitted to the extent it has a “direct and specific negative bearing on [the applicant’s] ability to perform the duties or responsibilities necessarily related to the employment position.” Further still, any employer rejecting an applicant based on their criminal history, must provide a pre-adverse action and a final adverse action notice.

As reported in our January newsletter, similar legislation has already been enacted in Buffalo, Hawaii, Massachusetts, Newark, Philadelphia, and Seattle, with Rhode Island and Minnesota slated to enact similar statutes later in 2014; currently similar legislation is pending in 26 other states. In light of this growing legislative trend and aggressive enforcement by EEOC, employers should continue to be vigilant of use of background checks in hiring practices. We will continue to monitor and update you on the rapidly evolving climate. 

In the interim, be sure to reach out to Kelley Drye for advise on navigating the matrix of timing restrictions on the criminal history question to make sure you do not make an inquiry before your jurisdiction allows. We can help you review your employment application, revise hiring procedures and conduct a risk assessment to strengthen compliance with federal, state, and local laws.