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San Francisco to Ban the Box for private employers starting August 13

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Effective Wednesday, August 13, 2014, the San Francisco Fair Chance Ordinance – also called the Ban the Box Ordinance – will require employers with San Francisco City or County offices and work sites who have 20 or more employees to follow strict rules about inquiring into and using criminal record history of job applicants and employees.

The Fair Chance Ordinance amends Article 49 of the San Francisco Police Code that defines procedures for considering arrests, convictions, and related information in making employment decisions. San Francisco Mayor Edwin Lee signed the Ordinance on February 17, 2014 after the San Francisco Board of Supervisors unanimously passed the legislation.

FAIR CHANCE ORDINANCE NOTICE

Under the new law, City and County of San Francisco employers must post a NOTICE TO JOB APPLICANTS AND EMPLOYEES about the Fair Chance Ordinance that is readily accessible to job applicants and employees. The notice outlines what rules employers must follow under the new Ordinance:

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 OLSE.

FOR MORE INFORMATION

Employers with questions about rights and responsibilities under the Fair Chance Ordinance may contact the City and County of San Francisco Office of Labor Standards Enforcement by calling 415-554-5192 or emailing fce@sfgov.org.

The Ban the Box movement – which aims to remove the box on applications that applicants check if they have criminal records – is rapidly spreading in the United States. A Ban the Box Resource Guide from the National Employment Law Project (NELP) reveals more than 60 cities in the U.S. have adopted policies to help reformed ex-offenders find a job.

Employment Screening Resources (ESR), a nationwide accredited background check firm located in the San Francisco Bay area, recommends employers consider utilizing a Ban the Box approach in hiring. ESR offers a Ban the Box Information Page with the latest news and updated reports that is available at http://www.esrcheck.com/Ban-the-Box/.

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