Ban the Box – The San Francisco Fair Chance Ordinance

Like all cities that have created ordinances around the Ban the Box Movement, San Francisco’s aim is to provide opportunities for those with criminal records.  In order to accomplish this, the ordinance redefines the reporting laws that are stipulated by the State of CA, and employers need to know what sort of information they can use when considering background check findings in their employment decisions.

First and foremost, the ban the box ordinance prohibits employers with 20 or more employees from inquiring into an applicant’s criminal history on an employment application or during the first live interview.  If you are a San Francisco based company and fit this profile, you are encouraged to make sure your policies and procedures and documents are all updated to meet the requirements.

It was widely felt within the San Francisco Board of Supervisors that the current hiring practices were not allowing those with arrest or conviction records the opportunities to move ahead in their lives.  There were barriers that were difficult for many to get over, and persons fitting the aforementioned description had a difficult time moving forward in an interview process, being met with an immediate closed door due to their criminal past.  Thus, the decision to ban the box emerged.

So what MUST employers do to ensure they are in compliance with this ban the box ordinance?  Employers must state on any job listing that they will consider qualified applicants with criminal histories.  They must also post a notice informing applicants of their rights under the ordinance, in any language spoken by at least 5 percent of the employees at the specific location of the job.  Employers must also be in communication with any unions with which they have a collective bargaining agreement, informing them of the ordinance and the employee’s rights.  Finally, regarding background checks, employers must provide a copy of the employee rights under the ordinance to all applicants prior to running a background check.  This is in addition to the current FCRA requirements.

So what is it that employers cannot consider or ask about under this ban the box ordinance?  Employers cannot inquire about or consider any arrests that did not lead to convictions, although employers CAN consider pending arrests.  Participation or completion of a diversion or deferral of judgment program also cannot be considered during the decision making process.  Per CA law, employers cannot consider convictions that are more than seven years old and under this ban the box ordinance, this is defined as the date of conviction being the date of sentencing.  Other things that employers cannot consider are convictions that have been dismissed as well as juvenile convictions.  It is also important to note that employers may not advertise that “any person with an arrest or conviction will not be considered for employment.” 

If any of these things are not in compliance, the company will face penalties if it is reported or discovered that the ordinance was not followed.  The penalties range from a first offense warning, to a $50 fine for a second offense, to a $100 fine for a third offense and beyond.  If the company is found to still not be in compliance, the company may be referred to the City Attorney to consider civil action, and if civil action is taken and the company found liable, the award includes things such as reinstatement, back pay, payment of benefits withheld, and the payment of liquidated damages. 

As mentioned prior, this ban the box ordinance provides additional provisions to the California law.  Current CA law includes a seven year limit, but the limit means that a person has been custody free for seven years.  Under the ban the box ordinance in San Francisco, employers are prevented from considering convictions that are more than seven years old, with the date of conviction being the date of sentencing.  Also, under the ban the box ordinance, an employer cannot seek nor consider an applicant’s conviction for any crime, including murder, if they were just released from confinement under a sentence levied seven years and one day ago.  Under CA law, the person would have to be custody free for seven years before the matter could not be considered.

The San Francisco Fair Chance Ordinance is a potential precursor to other like ordinances being created in the state, and follows on the heels of many such ordinances being put into law in other states.  The Ban the Box Movement appears here to stay, and employers’ nationwide need to be up to date on all of their state and local laws so that they don’t find themselves in jeopardy of not being in compliance.