Employers will no longer be able to ask about applicants’ criminal records

Effective August 16, 2014, employers in San Francisco with at least 20 employees can no longer ask job applicants about their criminal history on employment applications or during an initial interview, whether conducted in person, telephonically, by videoconference, or other technology. San Francisco approved the “Fair Chance Ordinance” (Ordinance Number 131192), otherwise known as the “Ban the Box” measure, which prohibits private employers and city contractors from asking applicants about:

  • arrests not leading to a conviction
  • participation in a diversion or deferral of judgment program
  • convictions that have been judicially dismissed, expunged, or voided
  • juvenile convictions
  • convictions that are more than seven years old from the date of sentencing
  • offenses other than a felony or misdemeanor such as infractions

In addition, employers may not inquire about criminal history until after the first interview or following a conditional offer of employment. The ordinance defines “inquire” as requesting or running a background check, therefore employers may not obtain criminal history information by utilizing a background check until after the first interview or conditional offer of employment.

Impact of the Ordinance

The ordinance is very detailed and imposes significant responsibilities upon employers including new posting, notice, and disclosure requirements as well as anti-retaliation prohibitions. Employers must follow specific guidelines if they decide not to hire an applicant because of a criminal history. Finally, if an employer fails to comply, the employer may be subject to penalties or even a civil action filed by the City of San Francisco.