Written By ESR News Blog Editor Thomas Ahearn
In April 2018, the San Francisco Board of Supervisors passed an amendment to a Ban the Box law called the Fair Chance Ordinance (FCO) that restricts the ability of employers to ask about the criminal records of applicants and employees to align the FCO with California Assembly Bill 1008 (AB 1008) that took effect on January 1, 2018. The amendment to the FCO takes effect on October 1, 2018.
The FCO currently requires employers in San Francisco with 20 or more employees – which will change to five or more employees on October 1, 2018 – 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. The list below is taken from a Legislative Digest comparing the existing law and the amendment provisions:
- 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.
The FCO – which applies to positions where the employee works or will work at least eight hours per week in San Francisco, including temporary, seasonal, part-time, contract, contingent, and commission-based work, and also covers work through the services of an employment agency, and any form of vocational or educational training – also prohibits covered employers from considering the following:
- An arrest not leading to a conviction, except for unresolved arrests.
- Participation in a diversion or deferral of judgment program.
- A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative.
- A conviction in the juvenile justice system.
- An offense other than a felony or misdemeanor, such as an infraction.
- A conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults).
- A conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis (reflects amendment provisions that will take effect on October 1, 2018).
In addition, the FCO requires covered employers to state in all job solicitations or ads that qualified applicants with arrest and conviction records will be considered for the position in accordance with this ordinance. The suggested language is as follows: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment qualified applicants with arrest and conviction records.”
Before taking adverse action such as refusing to hire, discharging, or not promoting an individual based on a conviction history or unresolved arrest, covered employees must give the individual an opportunity to present evidence that the information is inaccurate, the individual was rehabilitated, or other factors following procedures outlined in Police Code Section 4909 or Administrative Code Section 12T.4.
Covered employers must conspicuously post the new official FCO notice in every workplace or job site under the employer’s control by October 1, 2018. Covered employers must also provide yearly compliance reports to the Office of Labor Standards Enforcement (OLSE). Covered employers may view a recorded FCO webinar or download the FCO webinar slide deck available on the OLSE website.
The “Ban the Box” movement seeks 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 checkbox that requires candidates to disclose their criminal history. As of September 2018, more than 150 cities and counties as well as 32 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 a Ban the Box Resource Page that contains 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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