Beginning on August 13, 2014, the Fair Chance Ordinance (FCO) will require employers doing business in San Francisco with 20 or more employees to remove questions on applications asking about the criminal convictions of job applicants and follow strict rules regarding the criminal history of job applicants and employees.
The San Francisco Office of Labor Standards Enforcement, which will enforce the Fair Chance Ordinance, has issued an English version of the San Francisco Fair Chance Ordinance Official Notice that employers must post where readily accessible to job applicants and employees. The notice states the following requirements:
Certain matters are off-limits. An employer may never ask about, require disclosure of, or consider: an arrest not leading to a conviction (other than an unresolved arrest that is still undergoing criminal investigation or trial.); participation in a diversion or deferral of judgment program; a conviction that has been expunged or made inoperative; any determination in the juvenile justice system; a conviction more than 7 years old; and a criminal offense other than a felony/misdemeanor. Matters that are off-limits cannot be used by the employer for any reason at any stage of the hiring process.
An employer cannot ask about an individual’s conviction history or unresolved arrests at the start of the hiring process. This includes through a job application form, informal conversation, or otherwise.
A mandatory interactive process for matters not off-limits. Only after a live interview has been conducted, or a conditional offer of employment made, is the employer allowed to ask about an individual’s conviction history (except as to matters that are off-limits) and unresolved arrests. Only those convictions and unresolved arrests that directly relate to the individual’s ability to do the job may be considered in making an employment decision.
Before the employer may take an adverse action such as failing/refusing to hire, discharging, or not promoting an individual based on a conviction history or unresolved arrest, the employer must give the individual an opportunity to present evidence that the information is inaccurate, the individual has been rehabilitated, or other mitigating factors. The individual has seven days to respond, at which point the employer must delay any adverse action for a reasonable time and reconsider the adverse action. The employer must notify the individual of any final adverse action.
Evidence of rehabilitation include satisfying parole/probation; receiving education/training; participating in alcohol/drug treatment programs; letters of recommendation; and age at which the individual was convicted. Mitigating factors include coercion, physical or emotional abuse, and untreated substance abuse/mental illness, that contributed to the conviction.
No Retaliation. An employer may not take an adverse action against an applicant or employee for exercising their rights under the ordinance or cooperating with the Office of Labor Standards Enforcement.
The complete San Francisco Fair Chance Ordinance Official Notice is available at http://sfgsa.org/modules/showdocument.aspx?documentid=11600.
The Fair Chance Ordinance covers employees who are located or doing business in the City and County of San Francisco and who have 20 or more employees regardless of the locations of their employees. The San Francisco Board of Supervisors passed the Fair Chance Ordinance on February 4, 2014, which San Francisco Mayor Edwin M. Lee signed on February 14, 2014. A full text of the Fair Chance Ordinance (San Francisco Police Code, Article 49) is available at http://sfgsa.org/modules/showdocument.aspx?documentid=11598.