As detailed in our post earlier this year, Fair Chance Ordinance (FCO) to Help Prevent Discrimination, San Francisco's posting, reporting and inquiry rules for applicants' and employees' criminal histories takes effect on August 13, 2014.
San Francisco Mayor Edwin M. Lee signed San Francisco's Fair Chance Ordinance on February, 14, 2014 with the intent of preventing discrimination based on criminal history. Many employers ask job applicants to check a “box” on a job application to disclose criminal history information. As of August 13th, the ordinance applies to private and
public employers and it “bans the box” on employment applications and restricts private employers' ability to use criminal history information. In an effort to prevent discrimination, the new ordinance bars most employers and housing providers from (1) asking applicants to disclose their criminal background in the application process, and (2) using criminal background history or records in the employment or housing selection process. In addition, the FCO imposes new posting, notice, disclosure and record keeping requirements that take effect on August 13, 2014.
Who has to comply with the FCO?
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.
At what point can an employer ask about criminal history?
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). This step is required 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.
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.
Are you an employer concerned about the Fair Chance Ordinance?
Need to know when you're permitted to act adversely based on a person's criminal history?
Concerned about taking the proper steps to reach compliance before August 13th?
Employers and employees in San Francisco, California should not hesitate to contact leading California employment lawyers from Kingsley & Kingsley to discuss the Fair Chance Ordinance. To get answers to your questions or to discuss your specific case, call us toll-free at (888) 500-8469 or click here to contact us regarding your case.