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San Francisco May Ban Box for Criminal Records on Private Employer Applications

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Legislation introduced in December 2013 by members of the San Francisco Board of Supervisors – Ordinance 131192 – would expand existing “Ban the Box” restrictions that prevent city agencies from asking job applicants about criminal convictions on applications to include most private employers in the city.

Ordinance 131192 – introduced by Supervisors Jane Kim (District 6) and Malia Cohen (District 10) – would amending the Police Code to require employers and housing providers to limit the use of criminal history information, and follow certain procedures and restrictions when inquiring about and using conviction history information to make decisions about employment and tenancy in San Francisco.

The ordinance would also amend the Administrative Code to require City contractors and subcontractors to adhere to the same limits, procedures, and restrictions when making decisions regarding employment of persons for work on City contracts and subcontracts. The legislation has been assigned under 30 Day Rule to the Neighborhood Services and Safety Committee.

San Francisco has banned most city agencies from asking about criminal convictions since 2006. The newly proposed “Ban the Box” ordinance would include most private employers, publicly funded housing providers, and city contractors, but not include jobs where criminal histories are relevant such as law enforcement.

The ordinance would not completely bar private employers from asking about criminal records but allow them to reserve that question for later in the hiring process and conduct background checks after a live interview instead of after a conditional offer of employment. Ordinance 131192 would only apply to businesses with 20 or more employees and not allow job applicants to sue.

In October 2013, California Governor Jerry Brown signed into law Assembly Bill 218 (AB 218) to prohibit requesting criminal record information on initial employment applications for local and state government jobs. According to a November 2013 National Employment Law Project (NELP) Briefing Paper ‘Statewide Ban the Box: Reducing Unfair Barriers to Employment of People with Criminal Records,’ ten states have adopted some form of “Ban the Box” legislation: California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, and Rhode Island.

A September 2013 “Ban the Box” Resource Guide from NELP – a non-profit organization that focuses on issues affecting low-wage and unemployed workers – found more than 50 major U.S. cities have adopted hiring policies to remove unfair barriers to applicants with criminal records. The cities include: Baltimore, MD; Boston, MA; Chicago, IL; Cincinnati, OH; Cleveland, OH; Detroit, MI; New York City, NY; Oakland, CA; Philadelphia, PA; Pittsburgh, PA; San Francisco, CA; Seattle, WA; and Washington, DC.

A 2011 NELP study titled ‘65 Million Need Not Apply’ found that more than one in four adults in the United States had criminal records. The study estimated that 64.6 million people – representing 27.8 percent of the U.S. adult population – had a criminal record for either an arrest or a conviction on file with states.

Attorney Lester Rosen, Founder and CEO of San Francisco, CA-area background check firm Employment Screening Resources® (ESR), suggests private employers consider a ‘Ban the Box’ approach.

“Asking about criminal records early in the hiring process serves as a ‘knock-out punch’ before candidates have a chance to be considered on their qualifications and unnecessarily exposes employers to allegations they are automatically tossing out applications with a criminal record,” says Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to employment screening background checks.

“Employers are better served using good hiring techniques based upon neutral factors to whittle down the applicant pool,” explains Rosen. “When employers finally do ask applicants about any past criminal records, they need to make an effort to not ask a broadly worded question that may encompass criminal records that are either too old or irrelevant for the job, since that can have the impact of imposing a lifetime ban on an applicant.”

Ordinance 131192 is available at http://www.esrcheck.com/file/San-Francisco-Board-of-Supervisors_Ordinance-131192.pdf.

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