In the past week the San Francisco County Board of Supervisors passed an aggressive version of Ban the Box legislation. This new ordinance would go beyond many similar laws to include private businesses, and it explicitly incorporates provisions taken from the 2012 EEOC guidance on the use of criminal records in hiring.
The “Fair Chance” ordinance expands on a City law that had been on the books since 2008 (the City and County of San Francisco are separate, but coterminous, entities) that already prohibits blanket rejection of applicants with a criminal background. Its mandates require a very specific process employers must follow to comply, as described in this post from Littler.
The Treatment of Criminal Background Information
The new law will extend coverage to private businesses with 20 or more employees. Employers will be prohibited from researching an applicant’s criminal background until after a face-to-face interview, and convictions more than 7 years old may not be considered. Even after the first interview, employers may inquire only about felony and misdemeanor convictions as an adult, or current arrests with charges pending.
The law goes further by incorporating EEOC concepts that criminal background checks must be job-related and a business necessity, and stipulates the criteria employers have to use to evaluate these things. In effect, it requires employers to make individualized assessments of the sort recommended by the EEOC. If the employer determines to reject the applicant, a two-step adverse action process is required that goes beyond the one currently required under the FCRA. It makes employers tell applicants what specific part of their criminal history is the reason for rejection, and gives them at least 7 days to respond with mitigating information.
Beyond Banning the Box
The ordinance goes beyond typical Ban the Box legislation in mandating a process and communications that increase the chances an applicant will be aware of his or her rights. Employers will have to display a poster made by the County’s Office of Labor Standards Enforcement (OLSE) outlining these rights in places where applicants might see them.
Employers Must Comply. Or Else?
The ordinance is enforceable through substantial fines. Legal action can be initiated by reports from applicants, although this ordinance does not go so far as to create a private right of action.
Employers face a daunting task in complying with the various Ban the Box laws if they hire in multiple jurisdictions. Some might decide to adopt the most restrictive procedures in order to comply with all laws uniformly. Others might decide to move their businesses elsewhere.