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San Francisco Amends its “Ban-the-Box” Law

06/06/18

Author: ADP Admin/Tuesday, June 5, 2018/Categories: State Compliance Update, California

San Francisco amended its “ban-the-box” law or Fair Chance Ordinance, further restricting an employer’s ability to consider criminal record information. The new restrictions prohibit employers from inquiring about, requiring disclosure of, or basing employment decisions on convictions for decriminalized behavior, including the non-commercial use and cultivation of marijuana. In addition, employers are prohibited from inquiring about, requiring disclosure of, or basing employment decisions on a person’s conviction history until after a conditional offer of employment.

The Fair Chance Ordinance lists specific types of criminal history that employers can never inquire into, which are:
“(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.”

Amendments to Existing Law
The amended Fair Chance Ordinance adds that employers in San Francisco cannot consider convictions for decriminalized behaviors, such as convictions for the non-commercial use and cultivations of marijuana. Specifically, the law provides:

“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.”

Moreover, employers are prohibited from considering a person’s conviction history until after a conditional offer of employment.

The amendments to the Fair Chance Ordinance also provide for potential penalties for first-time violations, increase penalties for subsequent violations, authorize the payment of penalties to the victims of those violations, and permit employees or applicants to enforce the law.

Coverage: Employers with five or more employees nationwide and at least one employee in San Francisco (defined as someone who works eight or more hours per week in San Francisco, on average)

Effective: October 1, 2018

Action Required:
  • Review job applications and remove any questions about an applicant’s criminal history. Note: Our current model employment application does not contain any criminal history questions and can be found on FormSource/Forms Library.
  • Establish a protocol for obtaining and considering limited criminal history information, performing individualized assessments of that information, and notifying any applicant who is disqualified because of criminal history. You can review our Background Checks Toolkit available on FormSource/Forms Library in the pre-employment section for more information.
As always, please be sure to contact your HR Business Partner if you have any questions.

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Tags: 06/06/18

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