Limitations on Criminal History Inquires for San Francisco Employers

Effective August 13, 2014, the Fair Chance Ordinance restricts the ability of private San Francisco employers with 20 or more employees to inquire about and consider criminal history information for employment purposes. The Ordinance’s protections apply to applicants or employees whose place of employment is entirely or substantially located in San Francisco.

The Ordinance prohibits covered employers from making any inquiry regarding criminal history until after an initial job interview. The Ordinance specifically prohibits “check the box” type questions, which ask applicants and employees to provide information regarding criminal history. The Ordinance also specifies that employers may not indirectly ask about criminal history through the use of a background check or other means, until after an initial interview. Then, prior to conducting any criminal history inquiry, the employer must provide the applicant or employee with written notice of their rights under the Ordinance. In the event that an employer learns of criminal history information, the employer is limited in its ability to consider that information as a bar to employment. Rather, the employer must conduct an individualized assessment of the nature of the offense as it relates to the specific job position at issue, and may only consider the offense as a bar to employment if it has a “direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.” If an employer does determine that it must take an adverse action against an employee or applicant based on criminal history information (such as a demotion, refusal to hire, termination, or failure to promote), the employer must first notify the applicant or employee of the intended decision in writing and allow the individual a week to respond.