Many employers ask job applicants to check a "box" on a job application to disclose criminal history information. As of Aug. 13, 2014, San Francisco will "ban the box" for private and public employers. The city's board of supervisors earlier this year passed the Fair Chance Ordinance (FCO), which prohibits employers from inquiring into an applicant's criminal history in an employment application. Employers are also required to consider specific factors when assessing a candidate's criminal history and before taking action based on an applicant's criminal history. In addition, the FCO imposes new posting, notice, disclosure and recordkeeping requirements that take effect on Aug. 13, 2014.
Who Is Required to Comply with the Fair Chance Ordinance?
The protections of the FCO extend to all employees who perform any work in the city and county of San Francisco. The new law does not, however, apply to all employers. Rather, covered employers are those who are located or doing business in the city of San Francisco and have 20 or more employees, regardless of the employees' locations.
When Can an Employer Ask About and Consider an Individual's Criminal History?
After an employer conducts a live interview or extends a conditional offer of employment, the employer has to engage in a mandatory "interactive process" to ask about: (1) an individual's conviction history, except as to certain matters that are always off-limits; and (2) "unresolved arrests," which are arrests that are undergoing an active pending criminal investigation or trial.
Before inquiring as to a person's conviction history and unresolved arrests, the employer is required to provide a copy of the official FCO notice from the Office of Labor Standards Enforcement (OLSE). Separate written notice requirements under the California Investigation Consumer Reporting Agencies Act (ICRA) and the Federal Consumer Reporting Act (FCRA) continue to apply.
When making an employment decision based on an applicant or employee's criminal history, employers should perform an "individualized assessment" by considering: (1) only convictions that "directly relate" to the individual's ability to do the job; (2) the amount of time that has elapsed since the conviction or unresolved arrest; and (3) any evidence of rehabilitation or other mitigating factors, which include, but are not limited to, whether the applicant or employee satisfied parole and/or probation, received training or participated in a treatment program.
When Are Employers Permitted to Act Adversely Based on a Person's Criminal History?
Before refusing to hire, discharging or not promoting an individual 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. In addition, the employer is required to give the employee a copy of the background check report and provide notice of the contemplated adverse action, including the criminal history items forming the basis for the potential adverse action. The requirement to specify the basis for the potential adverse action is new; it is not imposed under federal or California law. The individual must be given seven days to respond to the employer.
What Documentation Requirements Apply?
Employers are required to affirmatively state in all job advertisements that are likely to reach persons who are seeking employment in San Francisco that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of the FCO. In addition, employers have to conspicuously post the OLSE's "Official Notice" of the FCO in every workplace in San Francisco. Companies must maintain and retain accurate records of employment, application forms, and other pertinent data for three years.
What Steps Should Employers Take?
- Post the OLSE's "Official Notice, San Francisco Fair Chance Ordinance" at every San Francisco workplace.
- Amend job advertisements to include language stating the employer will consider qualified applicants with criminal histories in the manner required by the FCO.
- Train interviewers to ensure that applicants are not asked about their criminal convictions or unresolved arrests until after the first live interview or conditional offer of employment, if at all. In doing so, remove from job applications any questions about an individual's criminal history.
- Provide job applicants and employees a copy of the OLSE's Official Notice when they are asked to sign a background check consent, disclosure and authorization form.
- Begin conducting an individualized assessment to determine whether an individual's criminal convictions and unresolved arrests directly relate to his or her ability to do the job.
- If an adverse action might be based on an applicant or employee's conviction history, enclose with the pre-adverse action letter a copy of the background check report, even if it was not requested by the individual. Also, identify in the letter the items forming the basis for the prospective adverse action.
Duane Morris LLP is a full-service law firm with more than 700 attorneys in the United States and internationally. Republished with permission. © 2014 Duane Morris. All rights reserved.
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