San Francisco Ordinance Limits Employer Use of Criminal Background Checks

On February 17, 2014, San Francisco passed a new ordinance requiring employers to limit the use of criminal history information and follow certain procedures and restrictions when inquiring about and using criminal background information. The Fair Chance Ordinance applies to employers with 20 or more workers regardless of location, but would only apply to persons whose physical location of employment or prospective employment is located within the City of San Francisco.

Under the Fair Chance Ordinance, employers are prohibited from inquiring about criminal history in an employment application form or at the beginning of the hiring process. Inquiry into criminal history is permissible only after the first interview with the applicant, or after a conditional offer of employment has been made. Employers may only consider criminal background information that has a direct and specific negative bearing on the applicant’s or employee’s ability to perform the duties of the job in question. Before an employer may take adverse action, the applicant or employee must be given notice of the adverse action, the information from the background check report upon which it would be based, and an opportunity to provide additional information, including evidence of inaccuracy, rehabilitation or other mitigating factors.

The Ordinance also prohibits employers from stating in job advertisements that persons with an arrest or conviction will not be considered for employment. In addition, employers must comply with various posting and recordkeeping requirements, and must not retaliate against applicants and employees who exercise their rights under the Ordinance.

The Ordinance does not in any way displace pre-existing legal restrictions related to applicant criminal history. Such pre-existing restrictions include bans on inquiries and consideration of certain types of criminal history, strict requirements for obtaining criminal background information, and laws banning unintentional discrimination based upon “disparate impact.”

The Ordinance’s requirements make it necessary for many employers to make substantial changes in their San Francisco hiring practices. We recommend that employers work with legal counsel to review their San Francisco hiring procedures, and make the needed modifications. Employers seeking further guidance on any of these issues may contact any of the firm’s lawyers listed below.

Employers seeking further guidance on any of these issues may contact any of the firm’s lawyers listed below.

Raymond H. Hixson, Esq. ([email protected]; 408-486-9977)

Brian K. Nagatani, Esq. ([email protected]; 408-486-9988)

Mary Wang, Esq. ([email protected]; 408-486-9933)