San Francisco Enacts "Ban the Box" Legislation, Seeks to Limit Use of Pre-Employment Background Checks

By Michael Klazema on 2/20/2014

As of February 17, San Francisco is one of the latest and largest proponents of "ban the box" legislation in the United States. According to a recent report from Bloomberg Law, San Francisco mayor Edwin Lee has now officially signed into law a new measure that seeks to give greater employment opportunities to convicted criminals who have worked hard to turn their lives around. The measure, called the "Fair Chance Ordinance," will mandate that employers, contractors, and housing providers operating in the city limit their use of criminal background checks during pre-employment interview cycles. The measure is designed to allow applicant abilities to stand on their own, without criminal convictions coloring how a hiring manager views a prospective employee.

Just like similar "Ban the Box" legislation in other cities and states throughout the country, the Fair Chance Ordinance will prohibit employers from asking questions about criminal convictions on job applications. Also in line with "Ban the Box" laws elsewhere, the new San Francisco ordinance will still allow for criminal background checks to be used as part of the process for vetting prospective employees and applicants, but will only be allowed to proceed after the applicant has already gone through the first live, in-person interview. In that regard, however, the San Francisco ordinance actually doesn't go as far as several other Ban the Box laws throughout the country. In other areas, background checks are now held until after all interviews have taken place.

The Fair Chance Ordinance also dictates that employers who do choose to disqualify an applicant due to a criminal conviction must only do so when the crime is somehow related to the job at hand. In other words, the ordinance forbids blanket employment discrimination against felons and other convicted criminals. According to the ordinance, one in four adults living in California has an arrest or conviction on his or her record. While arrest records alone are not permitted by the EEOC as a means of making an employment decisions - and while many employment screening vendors, included, don't even deliver arrest reports as part of criminal history investigations - it is certainly possible that confirmed convictions could be causing employment issues for a notable percentage of California's population.

In addition to putting forth new guidelines and restrictions for background check use in San Francisco, the Fair Chance Ordinance also established a punishment structure that employers and housing providers will have to answer to if they fail to remove criminal history questions from job applications, or if they run background checks at an inappropriate point in the job interview process. During the first year of the ordinance, businesses that break the rules will receive warnings and notices to change their policies. Second violations in the first year - or any violation after the first year has elapsed - will carry a $50 fine, with each recurring violation costing $100. According to Bloomberg, the ordinance goes into effect 30 days after signing.


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