Private sector employers in the City of San Francisco will have to comply with new “ban the box” legislation restricting questions about applicants’ criminal records on applications for employment and during job interviews.
The Fair Chance Ordinance, No. 17-14, prohibits employers with at least 20 employees from inquiring about a job applicant’s criminal history on an employment application, including “checking the box” to indicate criminal convictions or other criminal justice system involvement. It also prohibits covered employers from asking about criminal history during an initial interview. The law applies not only to regular employees, but also those performing contracted or contingent work, or working through a temporary agency. The Ordinance becomes operative on August 13, 2014.
After the initial interview, the Ordinance prohibits the employer from asking the applicant about the following:
- arrests that did not result in conviction, unless charges remain pending;
- completion of a diversion program;
- sealed or juvenile offenses;
- offenses that are more than seven years old from the date of sentencing; and
- offenses that are not misdemeanors or felonies, such as infractions.
The employer must provide the applicant with a written notice before making any inquiry into the applicant’s criminal history and display a poster in the workplace developed by the City’s Office of Labor Standards Enforcement (OLSE).
The Ordinance also restricts an employer’s ability to consider criminal history disclosed by an applicant. The information may be used in the selection process only if it has “a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.” To make this determination, the employer must evaluate whether the position offers the opportunity for the same or a similar offense to occur and whether “circumstances leading to the conduct for which the person was convicted . . . will recur.” In addition to job-relatedness, an employer also must consider the amount of time that has elapsed since the conviction and undertake an individualized assessment of specified factors that might show rehabilitation or mitigating measures.
If an employer decides to reject an applicant because of criminal history, it must notify the applicant in writing before a final decision is made and again once the decision is finalized (similar to the pre-adverse action and adverse action notices required when utilizing a consumer reporting agency by the Fair Credit Reporting Act and corresponding California state law). Applicants have seven days to provide notice of an error, rehabilitation or other mitigating information. The employer must take reasonable time to evaluate the information and reconsider the proposed adverse action before taking final action.
Employers must maintain records of employment, application forms and other relevant records for at least three years. An employer also must permit the OLSE, with appropriate notice, access to the records.
Violations of the Ordinance can expose an employer to significant liability. The City is authorized to pursue civil remedies, including injunctive relief, reinstatement of an aggrieved applicant or employee, back pay, benefits and $50 per day for each day the Ordinance is violated, and attorneys’ fees and costs. Administrative enforcement with less severe sanctions is permissible for the first months.
Other cities, including Seattle, Washington, also have enacted “ban the box” legislation. (See our article, Seattle City Council Votes to Limit Inquiries into Job Applicants’ Criminal Backgrounds.) Four states (Hawaii, Massachusetts, Minnesota, and Rhode Island) have adopted similar restrictions. At the federal level, the U.S. Equal Employment Opportunity Commission issued guidance in 2012 seeking to restrict pre-employment inquiries into applicants’ criminal backgrounds. (See our article, EEOC Issues New Enforcement Guidance on Use of Arrest and Conviction Records in Employment.)