San Francisco has put limits on criminal background checks in hiring a new employee.
San Francisco has joined Hawaii, Massachusetts, Minnesota, Rhode Island, and Philadelphia, Seattle and a few other cities in restricting pre-employment inquiries into criminal backgrounds of potential employees.
(While the remainder of this post will focus on the new SF City Ordinance, on March 10, 2014, the U.S. Equal Employment Opportunity Commission and the U.S. Federal Trade Commission issued joint guidance on employment background checks. There are two documents: one for guidance directed to employees and job applicants and the other is guidance directed to employers. Both documents contain general information, tips and lists of additional resources.)
San Francisco Mayor Edwin Lee signed the Fair Chance Ordinance in mid-February and it will go into effect on August 13, 2014. Below is a summary of some of the key provisions of the new Ordinance:
- It applies to employers with 20 or more employees, however, the restrictions only apply to employees who perform most or a substantial part or their duties within San Francisco. Thus, it would appear that, for example, if your company has 25 employees in Los Angeles, and is seeking to hire someone to work in San Francisco, the new Ordinance would apply to the hiring process for that position.
- Employers cannot ask about an applicant’s criminal history in an employment application. Also, employers cannot ask about criminal histories during the initial interviews of candidates. Instead, questions about criminal histories may be investigated only after 1) the initial interview or 2) a conditional offer of employment.
- Even when asking about criminal backgrounds, employers face more limitations about what types of criminal activities they can ask. Specifically, employers are barred from considering many items including the following: arrests that did not lead to conviction; convictions more than seven years old; convictions that have been judicially dismissed, expunged or voided; juvenile convictions; and a few other items.
- If provided information about relevant criminal events, an employer may only consider that criminal event if it directly relates to the position. So, the crime must have a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position. Employers must evaluate whether the job position provides the opportunity for the same or similar crime to occur, and the employer must analyze how distant in time the crime occurred and whether there are mitigating circumstances or evidence of rehabilitation.
- Before making an adverse employment decision, the employer must provide the candidate with notice that an adverse decision is imminent. Then, the candidate has seven (7) days to provide evidence of rehabilitation and/or mitigating circumstances.
- The Ordinance also requires posting of a notice that will be created by the San Francisco Office of Labor Standards Enforcement, notices in relevant job postings, and certain record-keeping practices.
- The Ordinance also authorizes the SF OLSE to administratively enforce the Ordinance and levy penalties. Additionally, the City may bring a civil action in and seek remedies including backpay, reinstatement, liquidated damages, and attorneys’ fees and costs.
Employers should plan now to comply with the Ordinance and put the following on their “to do” lists:
- consult with an employment law/HR attorney
- update template employee application forms to eliminate prohibited questions
- update template job posts so that they contain required language
- update disclosure and authorization forms, and notices of adverse decisions
- train anyone who will be analyzing criminal histories about the requirements of the Ordinance, including the prohibition of retaliation
- review and update record-keeping practices to comply with the Ordinance
- post the required notice after the OLSE publishes it
What do you think about this new Ordinance? Does it help give a “fair chance” to those with a criminal background? Does it go too far and/or interfere too much with employment practices?