By Cheryl D. Orr and Philippe A. Lebel
In February 2014, San Francisco joined the growing number of jurisdictions that have enacted so-called “ban the box” laws. Like many of its counterparts, San Francisco’s Fair Chance Ordinance, which will become effective in August 2014, significantly limits employers’ abilities to inquire about and/or consider applicants’ and employees’ criminal records when making employment decisions.
Pursuant to the Ordinance, San Francisco employers are prohibited from asking about applicants’ criminal histories until either (a) after the applicants’ first live interview, or (b) after a conditional offer of employment has been extended. However, the Ordinance places considerable limits on obtaining and using any information obtained. Specifically, employers are prohibited from inquiring about or taking any adverse action against applicants or current employees based on: (a) any arrests not leading to a conviction, except for some unresolved (i.e., pending) arrests; (b) participation in or completion of a diversion or deferral of judgment program; (c) convictions that have been judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative; (d) convictions or other determinations of the juvenile justice system; (e) convictions older than seven years; and/or (f) information pertaining to any offense other than a felony or misdemeanor (e.g., infractions). Before making any inquiry about an applicant’s conviction history, the Ordinance requires that the employer provide the applicant in question with a notice promulgated by the San Francisco Office of Labor Standards Enforcement (“OLSE”).
The Ordinance also requires that employers engage in an individualized assessment and consider only directly-related convictions when making decisions about applicants. Employers also must consider the amount of time that has elapsed since the applicants’ convictions and any evidence of rehabilitation, inaccuracy of the applicants’ records, and/or other mitigating factors. Before making any adverse decision, employers are required to provide the employee with a written notice of their intention to make such a decision, detailing the reasons for the decision. In addition, if any background report was considered by the employer, the employer must also provide that to the applicant. Any affected candidate has seven days following receipt of the employer’s notice to submit evidence regarding: (i) the inaccuracy of the criminal history information; or (ii) rehabilitation or mitigating factors. If the employer receives such information from an applicant, it must delay its intended action and consider the additional information.
In addition to the above restrictions, the Ordinance contains strict anti-retaliation/interference provisions. The Ordinance also requires that employers post a notice of applicants’ and employees’ rights in a conspicuous place at every workplace, job site, or other location in San Francisco that is under the employer’s control and that is frequently visited by employees or applicants. In addition, any job postings must contain a notice that the employer will comply with the Ordinance’s requirements.
Though San Francisco’s ordinance is particularly stringent, the City is by no means alone in banning employers from inquiries about applicants’ criminal pasts: dozens of cities and several other states – including Hawaii, Massachusetts, Minnesota, and Rhode Island – have enacted similar “ban the box” legislation. Moreover, there are a growing number of organizations pushing for the enactment of similar laws and ordinances across the country.
Employers in jurisdictions that have already enacted “ban the box” laws should ensure that they avoid any impermissible inquiries. Employers in locations that have not yet been affected should closely monitor developments in their jurisdictions to avoid any exposure.