The San Francisco Fair Chance Ordinance – also known as the Ban the Box Ordinance – will take effect Wednesday, August 13, 2014. This Ordinance will require employers with San Francisco City or County offices and worksites who have 20 or more employees to follow strict rules about inquiring into and using criminal record history of job applicants and employees.
The Ordinance amends Article 49 of the San Francisco Police Code that outlines procedures for considering arrests, convictions, and related information in making employment decisions. It requires employers to limit the use of criminal history information and follow certain procedures and restrictions when inquiring about and using conviction history information.
With regard to the hiring process, the Fair Chance Ordinance prohibits employers from inquiring into an applicant’s criminal history in an employment application or during the first live interview. The Ordinance is also very specific as to what employers must and cannot do.
What Employers “Must” Do:
- All job postings must state that the employer will consider qualified applicants with criminal histories in a manner consistent with the requirements of the ordinance.
- Employers must post a ‘Notice To Job Applicants and Employees’ informing applicants and employees of their rights under the Ordinance in a conspicuous place at every workplace (including a temporary worksite).
- This Notice must be posted in any language spoken by at least 5 percent of the employees.
- Employers must send a copy of this Notice to each union with which the employer has a collective bargaining agreement.
- Prior to any criminal history inquiry including running a background check, an employer must provide a copy of this notice to an applicant or employee every time the applicant or employee completes a background check consent/disclosure and authorization form.
What Employers “Cannot” Do:
- Inquire about or consider arrests not leading to convictions though employers may obtain and consider current pending arrests.
- Inquire about or consider participation in or completion of a diversion or a deferral of judgment program.
- Inquire about or consider juvenile convictions.
- Inquire about or consider convictions that are more than seven years old – the date of conviction being the date of sentencing.
- Inquire about or consider convictions that have been judicially dismissed, expunged or voided.
- Advertise that any person with an arrest or conviction will not be considered for employment or may not apply for employment.
Employers with City or County of San Francisco offices and worksites should review the requirements of the Fair Chance Ordinance taking effect August 13, 2014 and adjust policies and practices accordingly, preferably with the advice of employment law counsel. Employers with questions about rights and responsibilities under the Fair Chance Ordinance may contact the City & County of San Francisco Office of Labor Standards Enforcement by calling 415-554-5192 or emailing [email protected].
The Ban the Box movement – which aims to remove the box on applications that applicants check if they have criminal records – is spreading in the United States. A Resource Guide from the National Employment Law Project (NELP) shows more than 65 cities and counties in the U.S. have adopted Ban the Box policies to help give reformed ex-offenders a chance to find a job.
The idea behind Ban the Box is that asking about criminal records upfront serves as a potential early knock-out punch for ex-offenders that may otherwise have the knowledge, skills, and ability for the job. Ban the Box is quickly heading towards becoming a national standard and will be an important issue for all employers nationwide to consider when hiring workers.
Employment Screening Resources (ESR), a nationwide accredited background check firm located in the San Francisco Bay area, has actively recommended that its clients consider utilizing a Ban the Box approach in hiring.
One aspect of the San Francisco Fair Chance Ordinance that bears watching is the impact of the new San Francisco “seven year” rule on the use of criminal records and hiring. Under current California law, there is also a seven year limitation but it starts to run from the time person has been out of custody. Under the San Francisco rule, an applicant who was sentenced for a sexual assault or a violent felony seven years and one day before applying for a job would be protected even if the person just got out of prison. This could prove to be of grave concern to organizations that serve “vulnerable populations” such as children, the elderly, and people with special needs.
As a practical matter, employers will likely take a much closer look at unexplained employment gaps as a means of protecting their organization which, unfortunately, can negatively impact the chronically unemployed as well as ex-offenders. ESR will monitor this new Ban the Box law to attempt to determine if the new law helps or hurts ex-offenders due to the issues created by the change in the seven year rule.
More Ban the Box Information from ESR
Employment Screening Resources (ESR) is offering employers nationwide a Ban the Box Information Page that contains links to the latest news and reports about the Ban the Box movement. The Ban the Box Information Page from ESR, which will be updated with new information regarding the Ban the Box movement, is available at http://www.esrcheck.com/Ban-the-Box/. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com, call Toll Free 888-999-4474, or email [email protected].