San Francisco Amends Ban the Box Law Called Fair Chance Ordinance

Written By ESR News Blog Editor Thomas Ahearn

On April 3, 2018, the City and County of San Francisco amended its Ban the Box law called the Fair Chance Ordinance (FCO) that restricts the ability of employers to inquire about the criminal records of applicants and employees in employment decisions to align the FCO with the California state Ban the Box law called Assembly Bill 1008 (AB 1008) that took effect on January 1, 2018. The amendments take effect on October 1, 2018.

The current FCO – which took effect on August 13, 2014 – requires employers in San Francisco with 20 or more employees to follow strict rules regarding arrest and conviction records of applicants and employees who perform work in San Francisco and covers any vocation, job, or work. Here is a brief comparison of the existing law and amendments to the existing law for the San Francisco FCO:

Convictions for Decriminalized Behavior

  • Existing Law: Employers, housing providers, contractors, and subcontractors may inquire about, require disclosure of, and base housing and employment decisions on convictions for decriminalized behavior that are seven years old or less. Examples of such decriminalized behavior include the noncommercial use and cultivation of cannabis.
  • Amendment to Existing Law: This measure would prohibit employers, housing providers, contractors, and subcontractors from inquiring about, requiring disclosure of, or basing housing and employment decisions on convictions for decriminalized behavior, including convictions for the non-commercial use and cultivation of cannabis.

Number of Employees

  • Existing Law: The law applies to employers that employ 20 or more persons.
  • Amendment to Existing Law: This measure would apply to employers that employ 5 or more persons.

First Violation

  • Existing Law: For a first violation, no penalties may be assessed.
  • Amendment to Existing Law: For a first violation, a penalty of no more than $500 could be assessed.

Second Violation

  • Existing Law: For a second violation, a penalty of no more than $50 may be assessed.
  • Amendment to Existing Law: For a second violation, a penalty of no more than $1,000 could be assessed.

Subsequent Violations

  • Existing Law: For subsequent violations, a penalty of no more than $100 may be assessed.
  • Amendment to Existing Law: For subsequent violations, a penalty of no more than $2,000 could be assessed.

Multiple People Impacted by Same Procedural Violation

  • Existing Law: If multiple people are impacted by the same procedural violation at the same time (e.g. all applicants for a certain job opening are asked for their conviction history on the initial application), the violation is treated as a single violation rather than multiple violations.
  • Amendment to Existing Law: If multiple people are impacted by the same procedural violation at the same time, the violation would be treated as one violation for each impacted person.

Paying Penalties

  • Existing Law: Penalties must be paid to the City.
  • Amendment to Existing Law: Penalties would be paid to the person impacted by the violation.

Who Can Sue

  • Existing Law: Only the City Attorney can sue for violations of this law.
  • Amendment to Existing Law: This measure would authorize any employee or applicant whose rights have been violated to sue.

When Employers Can Ask about Conviction History

  • Existing Law: Employers and housing providers may inquire about, require disclosure of, or base housing and employment decisions on a person’s conviction history after either a live interview or after a conditional offer of employment.
  • Amendment to Existing Law: This measure would prohibit employers and housing providers from inquiring about, requiring disclosure of, or basing housing and employment decisions on a person’s conviction history until after a conditional offer of employment.

Employers covered by the Fair Chance Ordinance are also required to submit the online 2017 Employer Annual Reporting Form by April 30, 2018. Employers should review the instructions for the form before beginning and may also want to download a PDF Preview of the form. For more information about the San Francisco Fair Chance Ordinance (FCO), visit http://sfgov.org/olse/fair-chance-ordinance-fco.

“Ban the Box” is a catch phrase for initiatives that seek to advance employment opportunities for people with prior criminal convictions by eliminating any inquiry into a candidate’s criminal history on the job application, specifically the check box that requires candidates to disclose their criminal history. As of March 2018, more than 150 cities and counties as well as 31 states have passed Ban the Box laws.

ESR Ban the Box Resource Page

Employment Screening Resources (ESR) – a leading global background check provider – offers employers and HR professionals a Ban the Box Resource Page with complimentary whitepapers, infographics, and an interactive map updated with the latest Ban the Box laws for states, counties, and cities in America. The ESR Ban the Box Resource Page is at www.esrcheck.com/Legislative-Compliance/Ban-the-Box/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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