It may effectively be “lights out” for employers’ use of criminal history in San Francisco.

On February 17th, San Francisco became the latest municipality to place limitations on employers’ inquiries into job applicants’ criminal histories. However, The City by the Bay wasn’t satisfied with this encroachment into employers’ decision-making process and took it much farther.

Banning The Box

According to the Fair Chance Ordinance, which amends the city’s Police Code, employers hiring for positions in San Francisco may no longer inquire about an applicant’s criminal history on the employment application or at any time “until either after the first live interview with the person (via telephone, videoconferencing, use of other technology, or in person) or, at the Employer’s discretion, after a conditional offer of employment.”  This is typical of the increasing number of municipal ordinances and state laws enacting “Ban the Box” legislation. (I’ve written about the problems with Ban the Box a number of times over the last five years. It is also a topic addressed in our Background Screening Policy Considerations to Avoid Discrimination Claims webinar.)

Limiting Information to be Considered

The amendments go beyond banning the criminal history inquiry from employment applications and add limitations on what information can be considered by an employer when evaluating an applicant for employment:

Regarding applicants or potential applicants for employment or employees, an Employer shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received base an Adverse Action in whole or in part on:

(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section 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;

(5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing;

(6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.

Accordingly, the matters identified in this subsection (a) may not be considered in any manner by the Employer.

So an employer in San Francisco cannot ask applicants about or consider any criminal history except for convictions in which the sentencing occurred in the last seven years or active pending cases. Convicted of murder or rape eight years ago and still on probation? Don’t ask, don’t tell.

The ordinance limits employers to considering only misdemeanor and felony convictions. It also allows employers to consider “unresolved arrests” which are basically arrests where a case has been filed but has not yet been completed in the court system.

Employment background screening companies providing reports to California employers already have similar limitations on reporting non-conviction information and convictions older than seven years, so most San Francisco employers will likely not notice much in the way of change from the first five items above.

Banning Most Inquiries into Driver Safety

Item 6, however, is a new, and perhaps unintended, twist. By barring employers from considering “infractions”, the new ordinance prohibits employers from considering most of the information in applicants’ driving histories. Items such as speeding tickets and other traffic violations are considered infractions under California law and therefore cannot be considered by employers under this ordinance.

In order to comply with state and federal laws, some employers must make inquiries and consider information more broad in nature than allowed by the revised ordinance. The ordinance recognizes this and includes a preemption clause that allows employers to comply with state and federal law without violating the city ordinance. This presumably would cover driving history inquiries made by employers who employ commercial motor vehicle drivers governed by California law or the federal Department of Transportation.

However, as written, the ordinance seems to prohibit many employers whose employees operate smaller, non-commercial vehicles from inquiring into drivers’ safety history. This would include outside sales representatives, pizza delivery drivers, couriers, and others who drive non-regulated vehicles in the course of their work. Also, many employers use applicants’ driving history to evaluate their safety awareness when they may be operating heavy or dangerous equipment as part of their job responsibilities. That is now illegal in San Francisco under this ordinance.

Decision-Making Criteria

The ordinance also limits how San Francisco employers are allowed to use criminal records in evaluating applicants’ fitness for positions. Employers can only consider “directly-related convictions, defined as:

“Directly-Related Conviction” in the employment context shall mean that the conduct for which a person was convicted or that is the subject of an Unresolved Arrest has a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position. In determining whether the conviction or Unresolved Arrest is directly related to the employment position, the Employer shall consider whether the employment position offers the opportunity for the same or a similar offense to occur and whether circumstances leading to the conduct for which the person was convicted or that is the subject of an Unresolved Arrest will recur in the employment position.

This very narrow language requires that employers tie offenses directly to the position for which the individual applied. On its face, this may not seem like a practice different from what many employers have been following since the 1975 Green v. Missouri Pacific decision. However, it fails to recognize that employers often make fair judgments about candidates’ judgment and behavior patterns when reviewing criminal history items not “directly-related” to job responsibilities.

For example, an employer may not be concerned about a drunk driving offense three years ago when evaluating an applicant for a desk job that does not require them to operate a motor vehicle. On the other hand, an employer would rightly be concerned if an applicant had two DWIs and a drug possession offense in the last three years. None of those would likely meet the narrow definition of “directly-related convictions” for a desk job. However, when evaluated together they would be relevant when comparing one candidate to the next.

(In our free April 15th webinar, Creating a Criminal History Evaluation Tool, we’ll discuss how to assess both job-relatedness and when a series of criminal offenses that might be unrelated to a job might be relevant to the hiring decision.)

Special Adverse Action Provisions

The ordinance also requires that employers give each candidate an opportunity to provide “any evidence of inaccuracy [with regard to the criminal history records] or Evidence of Rehabilitation or Other Mitigating Factors.” This is reminiscent of the Equal Employment Opportunity Commission’s April 2012 guidance that suggests that applicants should be given an opportunity to explain why the employer’s policy with regard to criminal records should not apply to them. The ordinance defines

“Evidence of Rehabilitation or Other Mitigating Factors” may include but is not limited to a person’s satisfactory compliance with all terms and conditions of parole and/or probation (however inability to pay fines, fees, and restitution due to indigence shall not be considered noncompliance with terms and conditions of parole and/or probation); employer recommendations, especially concerning a person’s post-conviction employment; educational attainment or vocational or professional training since the conviction, including training received while incarcerated; completion of or active participation in rehabilitative treatment (e.g. alcohol or drug treatment; letters of recommendation from community organizations, counselors or case managers, teachers, community leaders, or parole/probation officers who have observed the person since his or her conviction; and age of the person at the time of the conviction. Examples of mitigating factors that are offered voluntarily by the person may include but are not limited to explanation of precedent coercive conditions, intimate physical or emotional abuse, or untreated substance abuse or mental illness that contributed to the conviction.

As we will discuss in our Background Screening Policy Considerations to Avoid Discrimination Claims webinar on March 18th, the state and federal prison systems have spent fortunes trying to determine what programs lead to rehabilitation and their success rate has been dismal. Now the EEOC and the City of San Francisco seem to expect employers to be able to evaluate such programs from a distance.

After providing the applicant a copy of their criminal history report (as required by the Fair Credit Reporting Act and repeated in the ordinance), the ordinance also seems to require that employers wait a minimum of seven days for the applicant to respond to the employer with evidence of rehabilitation or other mitigating factors. If that information is offered by the applicant, “the employer shall delay an Adverse Action for a reasonable period after receipt of the information and during that time shall reconsider the prospective Adverse Action in light of the information.”

Additional Notifications to Applicants

The ordinance requires employers to include new language in any job postings or other employment advertising stating “that the Employer will consider for employment qualified applicants with criminal histories.” This is a requirement even if the employer is not going to look into applicants’ criminal histories.

The City will also be publishing a notice  in “English, Spanish, Chinese, and all languages spoken by more than 5% of the San Francisco workforce” outlining the restrictions on employers and how individuals can report what they believe to be violations of the ordinance. Employers must post these conspicuously in the workplace.

Exception for Government Employers

Of course, the City exempted itself and other government entities from the requirements of this ordinance.
Employers in San Francisco should carefully review the language in The Fair Chance Ordinance with their legal counsel and their background screening partner and revise their policies accordingly.

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