San Francisco’s New Hiring Law: It’s “Ban the Box” on Steroids

Things aren’t getting any easier for employers in California.

As I posted way back in February, San Francisco has banned the box. Effective next week, Aug. 13, 2014, employers in the city   of San Francisco may no longer inquire about criminal history on employment applications or during interviews.

It’s Ban the Box on steroids, and it may be coming soon to a city near you.

Just removing the “box” is not enough

Titled The San Francisco Fair Chance Ordinance, No. 17-14, the new law prohibits both private and public employers with at least 20 employees from asking about a criminal past on the job application or in an initial interview. The law also restricts asking about criminal history on applications for affordable housing within the city.

With respect to employment, the law applies to temporary workers, contract workers, and city contractors and subcontractors. The proponents of this and similar laws are trying to give ex-offenders a second chance by deferring questions about criminal history until after the application stage of hiring.

But employers beware: You will need to do a lot more than just take the check box off of the application. Removing the box is not enough.

If an employer (or a landlord) wants to screen for criminal history information, the ordinance adds new restrictions and requirements. In addition to delaying the criminal question until post interview or post-job offer, it also requires additional notification prior to any inquiry, notice prior to taking a negative action, and an individualized assessment to give the applicant a chance to ask for reconsideration.

Headaches and heartburn for employers

As I predicted, this new law is causing plenty of headaches and heartburn for employers. Not to mention increased risk and compliance concerns, which always come at a price.

This law is an unprecedented tangle of traps for employers, blending bits from other existing state and federal laws. It mashes up the already required authorization and disclosures of the Fair Credit Reporting Act (FCRA), adverse action requirements of FCRA, and notice requirements under the California Investigative Consumer Reporting Agencies Act (ICRAA). Throw in the EEOC’s “individualized assessment” requirements under the guidance for the use of criminal history, New York’s anti-discrimination laws, shake it all up, and BAM! — you’ve got Ordinance No. 17-14.

Here is what you need to know:

Criminal inquiry restrictions

With respect to employment decisions, the ordinance prohibits the employer from asking the applicant about or requiring the disclosure of the following until after the first live interview (may be by phone or video conference) or after a conditional offer of employment has been made.

Don’t inquire about or consider:

  • An arrest not leading to a conviction, except under circumstances identified as an unresolved arrest;
  • Participation in or completion of a diversion or a deferral of judgment program;
  • A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative;
  • A Conviction or any other determination or adjudication in the juvenile justice or information regarding a matter considered in or processed through the juvenile justice system;
  • A Conviction that is more than seven years old, the date of Conviction being the date of sentencing (note this is different from California law);
  • Information pertaining to an offense other than a felony or misdemeanor such as an infraction.

Notice requirements

Prior to asking about the criminal history, an employer must provide the applicant with a copy of a notice specified in Section 4905 of the ordinance. The employer is also required to post a copy of the proscribed notice in the workplace. This notice appears to be in addition to the authorization and disclosure required under the Fair Credit Reporting Act (FCRA) and (ICRAA).

Individualized assessment and adverse notices

If an employer wants to base an adverse decision on an applicant’s conviction history, and employer has to conduct an individualized assessment. The employer must:

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  • Consider only Directly-Related Convictions;
  • Consider the time that has elapsed since the Conviction or Unresolved Arrest;
  • Consider any evidence of inaccuracy;
  • Consider any evidence of Rehabilitation or Other Mitigating Factors.

If an employer decides to reject an applicant because of criminal history, prior to taking the adverse action, the employer must provide notice in writing, including:

  • A copy of the background check;
  • The intended adverse action; and,
  • The items forming the basis for the action.

The applicant then has seven days to respond (orally or in writing), and may provide evidence of inaccuracy, evidence of rehabilitation or other mitigating information. The employer must reconsider the adverse action, and respond to the applicant with a final decision, delaying any adverse action “for a reasonable amount of time.”

Upon reaching a final decision, the employer must “notify” the applicant, but the ordinance does not specify the manner of notification. If your screening provider is sending adverse action notices on your behalf, you should

Conclusion

The overlap with state and federal laws already on the books will need to be considered carefully. The need to keep applications open and delaying action for “a reasonable amount of time” is unspecified, but I would be mindful to document your business needs.

The chosen means of notification and the additional record keeping is also up for interpretation, but given the current legal climate, the more documentation the better. Employers must maintain records of employment, application forms and other relevant records for at least three years.

Violations of the Ordinance are punishable by payment of back pay, benefits and $50 per day for each day the Ordinance is violated, as well as attorneys’ fees and costs.

No two “Ban the Box” laws are alike

Employers everywhere need to be aware of ban the box laws, as they continue to sweep across the country at both the state and local level. Buffalo, Philadelphia, Seattle and many other cities have enacted some variation on this same theme. See the related stories here and on other jurisdictions.

And unfortunately, no two jurisdictions are exactly alike. We recommend talking to your legal counsel AND your screening company to comply with this and other laws. Stay tuned for more updates.

This was originally published on the EmployeeScreen IQ blogEmployeeScreen IQ is not a law firm, and the contents of this article are not intended to be a substitute for legal advice.

Angela Preston is senior vice president and counsel, corporate ethics and compliance for SterlingBackcheck.com. Angela has broad industry experience including more than 20 years as a licensed attorney and 12 years as a leader and expert in the background screening industry. She has extensive expertise in employment law, privacy law, EEO law, and the Fair Credit Reporting Act. Contact her at Angela.Preston@sterlingbackcheck.com.

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