In 2005, the San Francisco Board of Supervisors adopted a resolution initiated by “All of Us or None” calling for San Francisco to eliminate hiring discrimination against people with criminal records by removing the criminal history requests on applications for public employment. The resolution impacted municipal hiring policy. In 2014, the San Francisco Board of Supervisors adopted San Francisco’s Ban the Box law, officially known as the San Francisco Fair Chance Ordinance, which expanded the city’s Ban the Box policy to cover both private and public employers.
Ban the Box Defined in San Francisco
Prior to the enactment of San Francisco’s Ban the Box Law, many employers opted to include questions on written applications related to the applicant’s criminal and conviction history. Often, employers made consideration for employment contingent on answering these questions. These questions were used to screen candidates from employment. As a result, applicants with criminal histories had a harder time finding employment.
In response to the prevalence of employers’ widespread use of conviction history as a screening mechanism, San Francisco enacted a Ban the Box law, which prohibits employers operating within San Francisco from asking about an applicant’s conviction history before making a job offer or conducting a live interview. This means that an employer cannot ask about an applicant’s conviction history on a written application for employment or during an interview that is held prior to the employer extending a conditional job offer.
In San Francisco, conviction history is broadly defined. Conviction history includes, most arrests not leading to convictions, participation in a diversion or deferral of judgment program, convictions that have been judicially dismissed, expunged, voided, invalidated, or rendered inoperative, convictions and determinations in the juvenile justice system, convictions more than seven years old (except where the position supervises a minor, dependent adult, or person 65 years or older), offensive information that did not rise to a felony or misdemeanor, or convictions for subsequently decriminalized conduct. Additionally, for purposes of employment applications, Employers cannot request disclosure of facts or details of any unresolved or pending arrest or oral and written conviction history.
Covered Employer
As of October 1, 2018, San Francisco’s Ban the Box law covers private and public employers who employ at least five employees, including owners and supervisors, worldwide. Job placement, employment, and referral agencies must comply with San Francisco’s Ban the Box Law.
San Francisco’s Ban the Box Law Keeps Applicant & Employee Criminal History Private
Under San Francisco’s Ban the Box law, employers may not inquire into or demand disclosure of specific criminal history and criminal justice system information. In the event that an employer discovers the covered information, it may not refuse to hire, terminate, demote, or adversely affect employment or prospective employment.
Protected information includes, most arrests not leading to convictions, participation in a diversion or deferral of judgment program, convictions that have been judicially dismissed, expunged, voided, invalidated, or rendered inoperative, convictions and determinations in the juvenile justice system, convictions more than seven years old (except where the position supervises a minor, dependent adult, or person 65 years or older), offensive information that did not rise to a felony or misdemeanor, or convictions for subsequently decriminalized conduct. Employers may not consider the aforementioned matters under any circumstances.
Background Checks Permissible Only After Employer Makes a Conditional Employment Offer & Provides Notice
San Francisco’s Ban the Box law prohibits employers from conducting background checks on applicants until after making a conditional employment offer. Employers can obtain an applicant or employee’s written consent to a criminal background check on a written employment application, but the application must state that the employer will not conduct or obtain the criminal background check until after extending a conditional employment offer.
Although employers can eventually perform a criminal background check, they must first provide a city-drafted notice informing applicants and employees of their San Francisco Ban the Box rights. Additionally, the employer must provide notices as required under the the California Investigative Consumer Reporting Agencies Act (ICRAA), California Civil Code sections 1786 et seq., and the Federal Consumer Reporting Act, 15 United States Code sections 1681 et seq.
San Francisco Ban the Box Law’s Individualized Assessment
Under the San Francisco Ban the Box law, an employer must perform an individualized assessment regarding the applicant or employee’s criminal history. The employer cannot deny employment or terminate and applicant or employee until after performing the mandatory individualized assessment.
Performing the individualized assessment requires the employer to weigh the criminal history against the position and ascertain the viability of extending or continuing employment. The employer may not deny or terminate employment unless the applicant or employee’s conviction history has a direct and specific negative bearing with the position’s duties that justify a denial. In performing the individualized assessment, the employer must consider the following factors:
- The conviction history includes directly related convictions that have a direct and specific negative bearing on the person’s ability to hold the position;
- The time that has elapsed since the conviction or unresolved arrest;
- Inaccuracies in the criminal history report; and,
- Evidence of rehabilitation; and,
- Any other mitigating evidence.
In determining whether a condition or unresolved arrest is directly related to the position, the employer must consider whether the employment position offers the opportunity for the same or a similar offense to occur and whether circumstances leading to the prior misconduct will recur in the position.
Examples of Rehabilitation or Other Mitigating Evidence
When responding to a prospective employment denial or termination, an applicant or employee is encouraged to submit as much rehabilitation or mitigating evidence as possible. This evidence includes, but is not limited to:
- Successful compliance with parole or probation;
- Employer recommendations;
- Educational attainment following the conviction, including vocational training;
- Completion of rehabilitative treatment, including alcohol or drug treatment; or,
- Letters of recommendation from community organizations, counselors, teachers, or community leaders.
Other mitigating factors the employee or applicant may consider providing include coercive conditions that caused the person to engage in the unlawful conduct, intimate physical or emotional abuse, or untreated substance abuse or mental illness that contributed to the conviction.
San Francisco Ban the Box Law’s First Notice
If, after performing an individualized assessment, the employer intends to deny or terminate employment, San Francisco’s Ban the Box law prescribes a procedure for providing the applicant with notice. First, the employer must provide a copy of the criminal history report used when performing the individualized assessment. Second, the employer must notify the applicant or employee of the prospective denial or termination. The notification must include the findings underlying the initial decision.
Applicant or Employee has at Least 7 Days to Respond
Under San Francisco’s Ban the Box law, the employer must provide the applicant or employee a chance to respond to the prospective employment denial or termination. The employer must allow at least seven days for a response to the prospective denial or termination, which the applicant or employee may provide orally or in writing. The applicant or employee should provide information and evidence demonstrating their fitness for the position, evidence of rehabilitation, or dispute the accuracy of the supporting conviction history report. The employer must consider information submitted by the applicant or employee, and delay the prospective denial or termination for a reasonable time before rendering a final employment decision.
San Francisco Ban the Box Law’s Second Notice
After considering the applicant or employee’s response, the employer must notify the applicant or employee of the final decision.
Employers who fail to follow San Francisco’s Ban the Box law cannot terminate employees, deny employment to applicants, or revoke a job offer.
San Francisco Ban the Box Record Retention
Employers must retain employment records, application forms, and other relevant Ban the Box related data and records for at least three years. San Francisco’s Office of Labor Standards Enforcement (“OLSE”) is empowered to access the records. Additionally, an applicant or employee can obtain them during litigation.
San Francisco’s Ban the Box Law Regulates Job Postings
Under the San Francisco Ban the Box law, employers must state in job postings that they consider all qualified applicants with criminal histories in a manner consistent with the San Francisco Ban the Box law.
Employer Liability for San Francisco Ban the Box Violations
Applicants and employees who suffer violations, including employment denials or terminations, have claims for damages under San Francisco’s Ban the Box law. Legal damages includes actual damages, reinstatement, back pay, attorney fees, and liquidated damages of $500 for each day an applicant or employee’s San Francisco Ban the Box law rights were violated.
Prior to filing in court, an applicant or employee must file a complaint with OLSE and wait 120 days.
Claims under San Francisco’s Ban the Box law must be filed within one year of the date of last violation.
Alternatively, an applicant or employee can file an administrative complaint the OLSE.
If the employer unreasonably decides to disqualify the applicant from the position or terminate an employee due to criminal history, the applicant or employee should consider filing a complaint with the state or taking legal action. If your employer or prospective employer has denied your San Francisco Ban the Box law rights, contact Astanehe Law immediately for your consultation. You have rights, and Astanehe Law may be able to assist you. Call us at (415) 226-7170 or email us at contact@astanehelaw.com. Astanehe Law Knows Employee Rights.
