San Francisco Ban the Box Ordinance May Hurt Ex-Offenders the Law was Meant to Help

BanTheBox

Written By Attorney Lester Rosen, Founder & CEO of Employment Screening Resources (ESR)

The San Francisco Fair Chance Ordinance (FCO) that took effect a year ago today on August 13, 2014, requires San Francisco City and County employers with 20 or more workers to follow strict rules about inquiring into and using the criminal record history of job applicants and employees.

Also known as the “Ban the Box” law, the FCO was enacted with the best of intentions – namely to give ex-offenders a fair chance at employment. However, there is widespread concern that by going too far, this particular Ban the Box law may end up as a ticking time bomb that can potentially hurt everyone, especially the ex-offenders it was meant to help.

Ban the Box is the name of a national campaign led by civil rights groups and advocates for ex-offenders that aims to give ex-offenders a second chance by having employers remove the check box that asks job applicants if they have a past criminal conviction record from their standard hiring applications.

By removing the check box, the Ban the Box movement hopes to protect ex-offenders from an early “knockout punch” in the hiring process and delay criminal history questions until after they have a chance to display their knowledge, skills, and abilities for the position to which they applied. That allows a person with a criminal history to compete for employment on an even playing field without being automatically rejected or deterred from even applying because of a past mistake.

The Ban the Box movement is rapidly spreading throughout the United States. According to research from the National Employment Law Project (NELP), more than 100 cities and counties along with San Francisco City and Country have adopted some form of Ban the Box legislation.

In addition, 18 states currently have Ban the Box laws: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont, and Virginia.

Many Ban the Box policies offer a fair and balanced solution to the criminal history question, prohibiting employers from automatically disqualifying qualified ex-offenders from jobs while also allowing those same employers to conduct a criminal background check at some point.

But when Ban the Box laws go beyond the application process and simply giving ex-offenders the chance to compete on an even playing field for jobs, they attempt to regulate what criminal matters may be used in background checks that employers can consider after a job offer.

As a result, such well-meaning Ban the Box legislation may carry the unintended consequence of actually hurting ex-offenders in the job market – the very people the law was enacted to help – and also hurting unemployed individuals with a spotty work history due to the recent recession.

The San Francisco Fair Chance Ordinance enacted last August is an example of a Ban the Box law that may go too far. The FCO prohibits affected employers in the City and County of San Francisco from considering a conviction older than seven (7) years.  Why is this critical?

The San Francisco FCO defines the seven year period as starting from the date of sentencing. The other 57 counties in California operate on a rule that a person needs be custody free for seven years before a conviction becomes too old for a background check firm to report legally.

The FCO “look back” period is seven years even if a person has been in custody during those seven years. A San Francisco employer would not be able to legally consider the criminal record of a person convicted seven years and one day ago for a serious offense that was just released from custody.

While there are strong arguments to give non-violent offenders protection before the seven years have elapsed, the original San Francisco law made no exception for offenders just released for violent crimes or sex offenses applying for jobs where there may be a bonafide reason to disallow workers with certain serious convictions that could potentially put vulnerable groups such as youth, the aged, infirmed, or challenged at great risk.

An Amendment to the Fair Chance Ordinance was passed on December 9, 2014 that allowed employers “to consider convictions more than seven years old when hiring for positions involving the supervision or care of minors, dependent adults, or seniors.” A Legislative Digest Summary of the Amendment to the FCO is available here.

However, a person convicted of a violent sexual offense such as rape whose date of sentencing was over seven years ago could apply to work in a women’s shelter  the day after being released from prison. Under the FCO, an employer could not inquire about, discover, or use the offense to protect that particular population at risk.

Ironically for San Francisco, an example of a real-life violent offender who would have benefitted from the same FCO seven year rule is a person whose name is infamous in the city.

Dan White was a former San Francisco Supervisor who shot and killed San Francisco Mayor George Moscone and Supervisor Harvey Milk on November 27, 1978. He was convicted on two counts of voluntary manslaughter on May 21, 1979 and sentenced on July 3, 1979.  He served five years of his seven-year sentence and was paroled on January 7, 1984. If the San Francisco Fair Chance Ordinance had been in effect at the time, two years after being released from prison White could have applied for a job in San Francisco and it would have been unlawful for a covered San Francisco employer to consider the fact that he killed a mayor and supervisor. (NOTE: White committed suicide on October 21, 1985, less than two years after his release from prison.)

As a result, the Fair Chance Ordinance as currently written has the potential of creating a headline grabbing situation that can greatly embarrass the City and County of San Francisco as well as city and county officials. The law creates a perfect scenario for a “Willy Horton” type situation – where a violent offender who should have been in prison in Massachusetts committed a crime after escaping during a weekend furlough program that greatly impacted the 1988 U.S. Presidential election – right here in San Francisco.

Under the FCO, a serious offender could gain inappropriate employment in a situation where the employer could not legally discover or consider the offense. One well-publicized incident that causes harm to employers, workers, or the public in San Francisco that receives national attention could set back the Ban the Box cause nationwide.

In reviewing the situation with San Francisco employers, it is clear they have found a solution that will enable them to comply with the letter of the law as well as protect their organization and clients. However, this solution may negatively affect ex-offenders as well as people with no criminal record at all. Since a serous barrier has been placed on their ability to obtain or use relevant criminal records, employers appear to be poised to utilize an applicant’s employment history as a leading barometer of safety, assuming that no “employment gaps” would mean no prison time.

The idea is that if an applicant has a documented employment history without significant interruptions, then an employer can have some degree of confidence that the person has probably not spent time in custody for a serious criminal matter. The practical result is that a person with a criminal record that created gaps in their employment history would be knocked out early in the process anyway so that the Ban the Box rules become meaningless.

By forcing employers to rely more heavily on employment history, the San Francisco Ban the Box law also potentially ends up punishing individuals with no criminal record but who had difficulties maintaining a consistent employment record during the recent recession.

The bottom line is that by over regulating the use of criminal records when hiring, worker rights and civil rights organizations may arguably make the situation worse for ex-offenders by encouraging employers to rely increasing on a solid and uninterrupted job history as the initial and most critical screening tool.

California already has a rule for reporting no convictions beyond seven years from conviction, release, or parole. When individual counties or cities start passing laws that go beyond the core concept and attempt to impose local rules on employers as a matter of social policy, such as occurred in San Francisco, it can create confusion and uncertainly for employers, the public, and ex-offenders. In addition, there is no ability to give local employers any type of fair legislative protection from negligent hiring allegations. That can only be done on the state level.

Local laws that go beyond the original purpose of “Ban the Box” underscore the need for model legislation to help develop a workable national solution.  Without rules, well-meaning advocacy groups in a city or county may pass changes without regard to the unintended consequences.

In addition, county or city government relying upon advocacy groups may not understand the consequences of the laws they are passing.  Having model legislation for Ban the Box would give city and county officials a point of reference in reviewing proposed legislation.

It is also concerning that the San Francisco Ban the Box law could potentially impact the current economic boom San Francisco is experiencing. Once start-ups and technology firms fully understand the impact of the San Francisco rules, it creates a very difficult hiring environment, especially for the slew of start-ups that are involved in the “Peer-to-Peer” space.

Although Employment Screening Resources (ESR) is a longtime supporter of Ban the Box, ESR is also concerned those unchecked efforts that go too far such as the San Francisco Fair Chance Ordinance will end up hurting ex-offenders, the unemployed, and make operating a business in San Francisco City and County much harder.

ESR offers a complimentary Ban the Box Information Page to employers and Human Resources professionals with links to news, resources, and legislation about the Ban the Box movement. The ESR Ban the Box Page is available at http://www.esrcheck.com/Ban-the-Box/.

ESR has also created a San Francisco Ban the Box Information Page as well as a San Francisco Ban the Box Ordinance “Cheat Sheet” Infographic to help San Francisco City and County employers quickly and easily understand the Fair Chance Ordinance.

About the Author – Attorney Lester Rosen

Attorney Lester Rosen is Founder and CEO of Employment Screening Resources (ESR), a nationwide background check company located in the San Francisco, California area and accredited by the National Association of Professional Background Screeners (NAPBS). He is the author of “The Safe Hiring Manual,” the first comprehensive guide to background checks. He was chairperson of the steering committee that founded the NAPBS and served as its first co-chair. Before entering the background screening industry, Mr. Rosen was a criminal trial attorney whose practice included criminal defense in the County of San Francisco at the Hall of Justice. He has also served as an adjunct law professor at Hastings College of the Law in San Francisco teaching criminal law and criminal procedure and was an instructor at the Hastings College of Trail Advocacy. Rosen also acted as a consultant in the development of a report titled ‘Best Practice Standards: The Proper Use of Criminal Records in Hiring’ prepared by a group of national civil and workers’ rights organizations that included the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute. The complete report is available at http://www.esrcheck.com/file/Best-Practice-Standards-Criminal-Records.pdf. For more information about Employment Screening Resources (ESR), please call toll free 888.999.4474 or visit http://www.esrcheck.com.

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