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What Employers Need to Know About the San Francisco Fair Chance Ordinance

The San Francisco Fair Chance Ordinance (the “Ordinance”) went in to effect on August 13, 2014.  The Ordinance limits the use of criminal history information by private employers in San Francisco and requires them to follow certain procedures and restrictions when inquiring about and using conviction history information.

 

Coverage

The Ordinance applies to job positions physically located in San Francisco (in whole or in substantial part) for employers located in or doing business in San Francisco with 20 or more employees. For purposes of counting the number of employees, employers must count all employees (including owners and management and supervisorial employees) worldwide.   (Please note that the San Francisco Office of Labor Standards Enforcement (the “OLSE”) interprets “substantial part” as working an average of 8 hours per week in San Francisco.  Therefore, an employee working at least 8 hours a week in San Francisco, including under a telecommuting arrangement, would be in a covered position under the Ordinance, provided that the employer employed at least 20 people worldwide.)

If there is a conflict between the Ordinance and state or federal law, such state and/or federal law requirements will supersede the Ordinance’s requirements.  For example, if federal or state law requires a criminal background check for a particular position that conflicts with the Ordinance, then the Ordinance (including the notice and posting requirements described below) does not apply to that particular position and its applicants.

 

Employment Applications (Banning the Box)

Employers cannot ask about or require applicants to disclose on an employment application information regarding convictions[1], unresolved arrests[2], or any matter listed under “Other Prohibited Actions” below.

 

Other Prohibited Actions

Employers are not ever permitted to ask about, require disclosure of, or base an adverse action on:

  • an arrest not leading to a conviction, other than unresolved arrests;
  • participation in or completion of a diversion or a deferral of judgment program
  • a conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative;
  • a conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system;
  • a conviction that is more than 7 years old (the date of conviction being the date of sentencing); or
  • a criminal offense other than a felony or misdemeanor, such as an infraction.

 

Permissible Inquiries and Timing

Employers are permitted to ask applicants about convictions or unresolved arrests either after the first live interview (via telephone, videoconferencing, other technology, or in person) or after a conditional offer of employment.

 

Notice and Posting Requirements

Employment Advertisements: Any employment advertisement or solicitation that is reasonably likely to reach persons who are reasonably likely to seek employment in San Francisco (including online job postings) must state that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the Ordinance.  According to the OLSE, the following statement would satisfy this requirement: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment qualified applicants with arrest and conviction records.”

Before Any Conviction History Inquiry or Background Check: Prior to any conviction history inquiry (including a background check), employers must provide a copy of the Fair Chance Ordinance Notice published by the OLSE (described below) to the applicant/employee.

Fair Chance Ordinance Notice Posting: All employers must post this notice in every workplace, job site, or other location in San Francisco under the employer’s control that is frequently visited by employees or applicants.  Employers may comply with this requirement by posting the notice in the employee break room or on a company notice board.   Employees and applicants must be able to readily access this notice. In addition, employers must send a copy of the notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding that is applicable to employees in San Francisco.

The Fair Chance Ordinance Notice is available here on the OLSE website.

 

Making an Employment Decision and Individualized Assessments

The Ordinance requires employers to conduct an individualized assessment before making an employment decision based on a person’s conviction history. When conducting the individualized assessment, the employer is only allowed to consider directly-related convictions or unresolved arrests, meaning the conduct for which the individual was convicted, or which is the subject of the unresolved arrest, has a direct and specific negative bearing on the individual's ability to do the job.  The employer must consider whether the employment position offers the opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted or that is the subject of an unresolved arrest will recur in the employment position.

In addition, the employer must consider:

  • the time that has elapsed since the conviction or unresolved arrest;
  • evidence of inaccuracies in the applicant's conviction history;
  • evidence of rehabilitation and other mitigating factors, such as:
    • a person’s satisfactory compliance with all terms and conditions of parole and/or probation (however, inability to pay fines, fees, and restitution due to indigence are not to be considered as noncompliance);
    • employer recommendations, especially concerning post-conviction employment;
    • educational attainment, or vocational or professional training since the conviction, including training received while incarcerated;
    • completion of or active participation in rehabilitative treatment (e.g., alcohol or drug treatment)
    • letters of recommendation from community organizations, counselors or case managers, teachers, community leaders, or parole/probation officers who have observed the person since his or her conviction;
    • age of the person at the time of conviction; and
    • mitigating factors that contributed to the conviction offered voluntarily by the person, including:
      • explanation of the precedent coercive conditions;
      • intimate physical or emotional abuse; or
      • untreated substance abuse or mental illness

 

Pre-Adverse Action and Adverse Action Notification and Procedural Requirements

Pre-Adverse Action--The Ordinance, like the federal Fair Credit Reporting Act (FCRA), requires an employer to notify a person if the employer is considering taking an adverse action based on conviction information found in a background check report and to provide the person a copy of the background check report.

In addition, the Ordinance requires employers to provide a pre-adverse action notice whenever an employer learns about the conviction history of a person from a source other than a background check report (e.g., if the person discloses conviction information in response to the employer’s inquiry).

The Ordinance also requires:

  • the pre-adverse action notice to specify the “items forming the basis of the prospective adverse action;”
  • the employer to provide the person 7 days to respond to the pre-adverse action notice before making a decision regarding the adverse action;
  • the employer to spend a reasonable period of time reconsidering the adverse action decision in light of any information received from the person responding to the pre-adverse action notice; and
  • to hold the job position open during this process.

Adverse Action—The Ordinance requires the employer to inform the applicant or employee of any final adverse action based on conviction history, regardless of whether the conviction history information was found in the course of the background check or through other means.  (Examples of adverse actions include, without limitation: failing or refusing to hire an individual, discharging an individual, or not promoting an individual.)

 

Anti-retaliation

The Ordinance prevents any retaliation based on a person’s exercise of his/her rights under the Ordinance.  Taking an adverse action against an individual within 90 days after the individual exercises his/her rights under the Ordinance creates a rebuttable presumption that the employer took such action in retaliation for exercise of those rights.

 

Enforcement/Penalties

Office of Labor Standards and Enforcement (OLSE)—If the OLSE finds a violation[3], the following penalties may be assessed:

  • first violation, or any violation during the first12 months the bill is operative—warnings, notices to correct
  • second violation—administrative penalty up to $50 for each person whose rights are violated or continue to be violated (to be paid to the City).
  • subsequent violations—administrative penalty up to $100 for each person whose rights were violated or continue to be violated (to be paid to the City).

Civil Actions—There is no private right of action. Only the City can bring a civil action against an employer for violating the ordinance.

In a civil action, the available remedies are:

  • reinstatement
  • back pay;
  • payment of benefits or pay unlawfully withheld
  • liquidated damages = $50 per employee/applicant whose rights were violated, for each day the violation continued
  • injunctive relief
  • reasonable attorney’s fees and costs

 

Use of Third-Party Recruiting Firm and Staffing Agencies

An employer who hires a third-party recruiting firm to conduct all or part of the hiring process will remain responsible for ensuring compliance with the Ordinance and will be held liable for any violations.

When an employer obtains workers through a staffing agency relationship, both the employer and the staffing agency must ensure compliance with the Ordinance and both may be held liable for any violations.

 

Record Retention

Employers must maintain and retain, for a period of 3 years, records documenting compliance with the Ordinance, including, without limitation:

  • documentation showing that notices were posted as required
  • any background check reports obtained
  • copies of job ads and postings
  • job application forms distributed
  • job applications submitted by applicants
  • documentation of employment interviews including forms, notes and interview questions
  • any information provided to an applicant regarding potential adverse action
  • any information received from an applicant or employee in response to a background check
  • documentation of all individualized assessments conducted
  • any documentation of rehabilitation or mitigating factors submitted by applicants or employees
  • documentation of adverse actions based on unresolved arrest or conviction records
  • documentation of hiring or promoting individuals after considering unresolved arrest or conviction records

Employers who fail to maintain or retain adequate records documenting compliance with the Ordinance are presumed to have violated the Ordinance, absent clear and convincing evidence to the contrary.

 

Annual Reporting

Employers are required to submit an annual reporting form to the OLSE, which will be available on the OLSE website.

 

For More Information

The OLSE published FAQs on its website on August 11, 2014, which are available here.

 

Please note that this update is not intended to constitute legal advice. 

If you have questions regarding the San Francisco Fair Chance Ordinance, please feel free to contact either Kristin Pedersen or Maki Daijogo at Daijogo & Pedersen, LLP through our website, www.dpemploymentlaw.com, or by calling us at 415.924.9400.


[1] A “conviction” is a felony or misdemeanor conviction for which the person has been placed on probation, fined, imprisoned, or paroled.

[2] An “unresolved arrest” is an arrest undergoing an active pending criminal investigation or trial that has not yet been resolved. An arrest has been resolved if the person was released and no charges were filed, or if the files have been dismissed or discharged.  Unresolved arrests may be considered by employers as part of the individualized assessment discussed below if and only if the unresolved arrests are directly related to the individual’s ability to do the job and they are less than 7 years old.

[3] Procedural violations impacting multiple employees or applicants at the same time will be treated as a single violation.

 

Legal Disclaimer

Legal Disclaimer and Notice:
These updates have been prepared by Daijogo & Pedersen, LLP for informational purposes only and are not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Information on this website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.