San Francisco Employers Must Give Former Convicts a Fighting Chance

Joining a growing movement of 12 states and more than 60 cities with “ban the box” laws, i.e., deleting the typical criminal history check box often seen on employment applications, San Francisco’s Fair Chance Ordinance (FCO) goes into effect August 13, 2014.

Arguably the strictest “ban the box” legislation in the nation, the FCO requires covered private employers, city contractors, and housing providers to limit timing and use of criminal background checks and take the following steps:

• State in all job postings – and to conspicuously display an FCO notice — that qualified applicants with arrest and conviction records will be considered for the position in accordance with the FCO;
• Refrain from asking about an applicant’s conviction history or unresolved arrests at the start of the hiring process, such as on a job application form or through informal conversation;
• Wait until after conducting a live interview or making a conditional employment offer before asking about unresolved (i.e., pending) arrests and conviction history (except for any off-limits matters, such as arrests that did not lead to a conviction, misdemeanors, or convictions more than seven years old);
• Consider only those convictions and unresolved arrests that directly relate to the applicant’s ability to do the job (for example, an embezzlement conviction is likely relevant for a finance position); and
• Before denying an applicant a job due to a conviction, give the individual an opportunity to establish that the criminal background information obtained is inaccurate, he/she has been rehabilitated, or other mitigating factors such as physical or emotional abuse, coercion, or untreated abuse/mental illness that led to the conviction.

The FCO applies to employers located in or doing business in the city and county of San Francisco who have 20 or more employees (regardless of the employees’ location). It covers job applicants and employees who would be or are performing work in whole or substantial part in the city of San Francisco. Affected employers should promptly review and comply with the FCO in its entirety, including appropriate changes to job postings, employee applications, and interviewing protocol. All other employers should consider reviewing their hiring forms and policies to ensure lawful inquiry into an applicant’s criminal history, particularly if located in another “ban the box” jurisdiction.

For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.