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Labor & Employment Alert >> Limitation on How Employers May Use Criminal History Information in San Francisco

May 20, 2015

"Ban the box" laws – named after the idea of doing away with the criminal record check-off box common on job applications – have been gaining momentum across the country. Like many similar laws passed recently, San Francisco’s Fair Chance Ordinance, applicable to employers in San Francisco with twenty or more employees, limits how employers may use criminal history information and specifies procedures that must be followed to do so.

The Fair Chance Ordinance prohibits inquiries into an applicant’s criminal background until after the first live interview (regardless of whether it is conducted via telephone, video­conferencing, other forms of technology, or in-person) or a conditional offer of employment.

If and when an employer does inquire into an applicant’s criminal background, the employer is still prohibited from inquiring about or considering:

  • Arrests not leading to convictions (though employers may obtain and consider current pending arrests);
  • Participation in or completion of a diversion or a deferral of judgment program;
  • Convictions that have been judicially dismissed, expunged, or voided;
  • Juvenile convictions;
  • Convictions that are more than seven years old – the date of conviction being the date of sentencing; or
  • Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.

The Ordinance’s definition of “inquire” includes conducting a background check.

In addition, before an employer may take an adverse action based on a conviction history or unresolved arrest, the employer must give the individual an opportunity to present evidence that the information is inaccurate, the individual has been rehabilitated, or other mitigating factors.

Employers are also required to:

  • State in all job opening advertisements that qualified applicants with arrest and conviction records will be considered for the position in accordance with the Fair Chance Ordinance;
  • Post the Official Fair Chance Ordinance notice in the employer’s work locations (the notice can be found here);
  • Maintain and retain accurate records of employment, applications and other data for three years; and
  • Provide annual compliance reports to the Office of Labor Standards Enforcement (the online reporting form can be found here).

Bottom Line

With the passing of the Fair Chance Ordinance in San Francisco and the increasing prevalence of “ban the box” laws across the country, companies should make sure to review the law in their location(s) when deciding whether to include any questions related to criminal histories on their applications.