San Francisco became the latest city to enact a “ban the box” law, which prohibits employers from inquiring about an applicant’s criminal history during the job application process, in February 2014. Numerous cities and states prohibit such inquiries by public employers and private contractors, but San Francisco’s law applies to many private employers as well. Still more jurisdictions have placed strict limits on the duration and scope of criminal background checks. Federal anti-discrimination law also plays a role in how an applicant’s criminal history might affect a hiring decision.
The San Francisco Board of Supervisors passed the Fair Chance Ordinance (FCO) by a unanimous vote on February 4, 2014. The law will take effect on August 13 of this year. It defines “employer” very broadly to include individuals, business entities, and other organizations located within the city and county of San Francisco that employ twenty or more people, regardless of the employees’ location. The FCO may apply to some city contractors with fewer than twenty employees, depending on the type of contract.
Employers covered by the FCO may not ask about certain parts of an applicant’s criminal history at any point during the application process. They also may not require an applicant to disclose such information, nor may they take any adverse action against a job applicant or employee based on such information. Protected information includes arrests that did not lead to a conviction, provided that no criminal case is still ongoing; participation in any program of diversion or deferred adjudication; dismissed, expunged, or voided convictions; convictions made through the juvenile justice system; and convictions with a sentencing date that is more than seven years ago.
Employers are still permitted to conduct a criminal background check on an applicant, but it must occur later in the process. The FCO amends existing law, found in Article 49 of the San Francisco Police Code, that prohibits employers from inquiring about criminal history at the beginning of the application process. Employers must now conduct an “individualized assessment” of an employee’s criminal history, and must restrict their review to “directly-related convictions.” Police Code § 4904(f). A “directly-related conviction” is one that has a “direct and specific negative bearing” on a person’s ability to perform a specific job. Police Code § 4903.
The FCO is much more extensive than state law, which also regulates employers’ criminal background checks. State law prohibits employers from inquiring about arrests without convictions, or participation in pre-trial or post-trial diversion programs. Cal. Labor Code § 432.7(a). Employers are also barred from asking about minor marijuana convictions that are over two years old. Cal. Labor Code § 432.8.
At the federal level, the Equal Employment Opportunity Commission (EEOC) offers some guidance to employers who fall under the jurisdiction of Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on race, sex, religion, and other factors. Employers who base employment decisions, in whole or in part, on criminal history may violate Title VII, even inadvertently, if the policy has a disparate impact on a protected group. This warning can apply to state and city anti-discrimination laws as well.
If you have a dispute over a business matter, you should consult with a knowledgeable business and commercial attorney. James G. Schwartz has represented Bay Area businesses since 1976. To schedule a free and confidential consultation to discuss your case, please contact us today online or at (925) 463-1073.
Ordinance No. 17-14 (PDF file), “Ordinance amending the Police Code to require Employers and Housing Providers to limit the use of criminal history information and follow certain procedures and restrictions when inquiring about and using conviction history information…” San Francisco Board of Supervisors, February 4, 2014
More Blog Posts:
New Laws Affecting California Businesses Beginning in 2014, Pleasanton Business & Commercial Law Blog, December 11, 2013
San Francisco Firefighters Prevail in Age Discrimination Lawsuit, Pleasanton Business & Commercial Law Blog, November 15, 2013
California’s Minimum Wage Increase, Effective July 1, 2014, May Potentially Impact Your Business’s Exempt and Non-Exempt Employees, Pleasanton Business & Commercial Law Blog, October 15, 2013