Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On April 13, 2018, the Fair Chance Ordinance amendments were signed into law. The changes will become operative on October 1, 2018.
In 2014, San Francisco enacted its ban-the-box law, which significantly restricted the ability of employers to inquire into, and use, criminal records for hiring and other employment purposes.1 This Fair Chance Ordinance (FCO) lists specific types of convictions and information that employers can never inquire into, including convictions more than seven years old. The FCO also bars employers from asking about an applicant’s conviction history (or requesting a background check) until after either (1) a live interview with the applicant, or (2) a conditional offer of employment made to the applicant. Moreover, if the employer intends to make an employment decision based on conviction history, the FCO requires the employer to first conduct an individualized assessment of whether the conviction is job-related.
In the years following this FCO, numerous other cities (as well as states and counties) passed their own ban-the-box laws—similarly aimed at restricting employers’ use and consideration of criminal records. California recently enacted a statewide ban-the-box law, effective January 1, 2018.2 The California law applies to all employers in California with five or more employees. Like the San Francisco FCO, it restricts the ability of employers to consider conviction history and requires an individualized analysis for employment decisions based on conviction history. In certain ways (detailed below), the California law is more restrictive than the San Francisco FCO. In an apparent response, San Francisco has proposed certain amendments to its FCO that will bring it more in line with the new California law. Here is what you need to know:
Expanded Scope of Coverage: The FCO currently defines the term “employer” as “any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City” and that employs 20 or more persons regardless of location, including “owner(s), management, and supervisorial employees.” The proposed amendment would reduce the number of employees needed to qualify as a covered “employer” from 20 to five. This is same number of employees required to qualify under the California law. If passed, this means that even small employers will (when covered) need to take great care to ensure compliance with both the California law and the San Francisco FCO.
Inquiries Prohibited Until After Conditional Offer: The FCO currently allows the employer to inquire into conviction history (and order background reports) after either (1) a live interview with the applicant (via phone, videoconferencing, other technology, or in person), or (2) a conditional offer of employment is made to the applicant. However, the new California law does not permit conviction history inquiry after only the interview. Rather, under California law, consideration of an applicant’s conviction history is permissible only after the employer has made a conditional offer of employment. Therefore, as a practical matter, as of January 2018, San Francisco employers could no longer request conviction history information after only the interview. The proposed amendment would reconcile the two laws.
Prohibited Inquires At Any Time: The FCO continues to bar employers from inquiring into or considering any of the following at any time: “(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section as an Unresolved Arrest; (2) Participation in or completion of a diversion or a deferral of judgment program; (3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code sections 1203.4, 1203.4a, or 1203.41; (4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system; or (5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing; or (6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.”
The proposed amendments would add to this list the following: “A Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing. Examples of statutes that have decriminalized particular conduct include but are not limited to California Health and Safety Code Sections 11362.1 and 11362.2.” If the amendments pass, San Francisco employers will need to pay close attention to the conviction history (including records pertaining to marijuana offenses) to ensure that the conduct underlying the offense has not been decriminalized.
Penalties and Enforcement: The FCO presently gives the Office of Labor Standards Enforcement (OLSE) authority to enforce the law, including levying penalties in an administrative proceeding. It also grants the City Attorney the authority to “bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Article, and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, but not limited to: reinstatement; back pay; the payment of benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $50.00 to each employee, applicant or other person whose rights under this Article were violated for each day such violation continued or was permitted to continue; appropriate injunctive relief; and, further shall be awarded reasonable attorney’s fees and costs.” The proposed amendments would significantly increase the penalties for non-compliance to $500 for the first violation, $1,000 for the second violation and $2,000 for any subsequent violations. The amendments further clarify that if multiple applicants or employees are impacted by a violation, “the Employer shall be assessed the same administrative penalty for each of the employees or applicants affected by that procedural violation.”
Finally, the proposed amendments provide a private right of action: “any employee or applicant whose rights under this Article 49 have been violated may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Article.” Prior to bringing any such civil action, the employee or applicant must exhaust administrative remedies and first file a complaint with the OLSE.
Employers covered by California law, particularly in San Francisco and also separately in Los Angeles,3 must continue to be mindful of the various layers of laws that govern inquiries into, and the use, of criminal records.4 Employers in California that use criminal background reports must also continue to be mindful of the federal and California fair credit reporting laws.5 It remains to be seen whether the Equal Employment Opportunity Commission (EEOC) will take measures to preserve its enforcement guidance on the use of arrest records and convictions for hiring and employment decisions.6 Such measures will be of interest to employers nationwide, because some EEOC lawsuits are still ongoing.7
1 See Rod M. Fliegel and Jennifer Mora, San Francisco's OLSE Issues "FAQs" On Fair Chance Ordinance, Littler Insight (Dec. 17, 2014).
2 See Rod M. Fliegel and Allen P. Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017).
3 See Jennifer L. Mora, Rod Fliegel, Allen Lohse, and Christina Cila, City of Los Angeles Mayor to Sign Long-Awaited “Ban the Box” Law, Littler Insight (Dec. 9, 2016).
4 See Jennifer L. Mora, California Employers Are Subject to New Requirements When Using Criminal History Information, Littler Insight (Feb. 21, 2017); Rod Fliegel, Jennifer Mora and Amanda Fu, New California Laws Restrict the Discretion Employers Have to Inquire Into and Use Criminal Record Information, Littler Insight (Oct. 24, 2013).
5 See Rod Fliegel, Alison Hightower, and Allen Lohse, High Alert for California Employers and Employers Nationwide for the Second Wave of FCRA Class Actions, Littler Insight (Oct. 19, 2017); Jennifer L. Mora and Rod Fliegel, Ninth Circuit is the First Appellate Court to Rule on “Extraneous Text” in a FCRA Background Check Disclosure, Littler Insight (Jan. 25, 2017).
6 See Rod M. Fliegel and Molly Shah, EEOC's Background Check Guidance Suffers Loss in Texas Federal Court, Littler ASAP (Feb. 5, 2018).
7 See Rod M. Fliegel and Allen Lohse, The EEOC Continues to Press Litigation Under Title VII Concerning Employer Criminal Records Checks, Littler Insight (Dec. 21, 2017); Rod M. Fliegel, Jennifer L. Mora and Allen Lohse, EEOC's Race Discrimination Suit Against Janitorial Company Includes Background Check Allegations, Littler ASAP (July 14, 2017).