On August 13, 2014, San Francisco joined a number of jurisdictions in restricting employer inquiries and use of criminal background information. On February 13, San Francisco passed the “Fair Chance Ordinance,” (“Ordinance”) which applies to private employers with at least 20 employees (located in San Francisco or otherwise).
The Ordinance contains a blanket prohibition on inquiries into or consideration of the following criminal background information:
- Arrests not leading to conviction.
- Participation in or completion of a diversion or deferral of judgment program.
- Convictions that have been dismissed, expunged, or voided.
- Juvenile convictions.
- Convictions that are more than seven years old.
- Information pertaining non-felony or misdemeanor offenses (e.g., infractions).
Employers can make limited criminal background inquiries after the first live interview or a conditional offer of employment.
However, employers can only consider “directly-related convictions,” which are those that have a “specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position.” In making the “directly related” inquiry, the employer “shall consider whether the position offers the opportunity for the same or a similar offense to occur and whether circumstances leading to conduct for which the person was convicted or that is subject of an Unresolved Arrest will recur in the employment position.”
Prior to taking an adverse action based on criminal history, the employer must conduct an “individualized assessment,” considering the time elapsed since the offense; evidence of rehabilitation; evidence of inaccurate records; and other mitigating factors. Mitigating factors include, but are not limited to:
- Satisfactory compliance with terms of parole or probation.
- Employer recommendations (especially post-conviction recommendations).
- Post-conviction educational, vocational, or professional training (including training received while incarcerated).
- Completion of or participation in rehabilitative treatment.
- Recommendations of community organizations, counselors or case managers, teachers, community leaders, or parole and probation officers.
- Age at the time of conviction
- Individual’s explanation of the coercive conditions, intimate physical or emotional abuse, untreated substance abuse, or mental illness that contributed to the conviction.
The employer must also provide the employee or applicant a copy of the background check report, notify the employee or applicant prior to taking any adverse action, and identify the items “forming the basis for the prospective Adverse Action.” Thereafter, the individual has seven days to provide evidence of inaccuracy of the records and mitigation. If he or she does so, the employer must delay and reconsider the adverse action. The Ordinance also regulates job advertisements. Solicitations that are “reasonably likely” to reach individuals seeking employment in San Francisco may not “directly or indirectly” express that a person with an arrest or conviction will not be considered for employment. Employment solicitations must state that the employer “will consider for employment qualified applicants with criminal histories” in a manner consistent with the Ordinance. They must also post information related to the Ordinance in the workplace.
Finally, employers must annually disclose to the Office of Labor Standards Enforcement (OLSE) information required to verify compliance. Failure to maintain and allow access to records will result in a presumption of non-compliance that can only be overcome by clear and convincing evidence.
The Office of Labor Standards Enforcement (OLSE) is authorized to investigate and remedy violations of the Ordinance. Notably, it may find a violation based simply on the employer’s failure to conduct the required “individualized assessment.” Upon finding a violation, the OLSE may issue administrative penalties of up to $100 per violation. The OLSE may also initiate a civil action and seek all remedies, including reinstatement, back pay, and attorneys’ fees.
Action Items For Employers
The Fair Chance Ordinance creates numerous procedural hurdles for employers that consider criminal background information, and may in certain situations increase exposure to negligent hiring claims. In any event, San Francisco employers should promptly consider the following best practices:
- Revise hiring policies, interview guides, employment applications, job postings, recordkeeping policies, and other documents.
- Establish clear policies for the acquisition and use of criminal background checks.
- Train human resources professionals and other employees involved in the hiring process to comply with the ordinance, including how to conduct an appropriate individualized assessment.
- Post all required notices and train human resources regarding the recordkeeping requirements.
- Ensure agencies from whom you obtain criminal background information do not provide overbroad disclosure.