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Complying with San Francisco’s “Ban the Box” Ordinance

Question: Does the new San Francisco “Ban the Box” ordinance apply to our business? If so, how do we comply?

Response & Analysis:

On February 13, 2014, the mayor of San Francisco signed off on amendments to the San Francisco Police Code, Article 49 and Administrative Code, Article 12, which restrict an employer’s use of criminal records. These new “Ban the Box”1 rules become operative for businesses on August 13, 2014. The changes to the Police Code and the Administrative Code are similar; the Administrative Code changes primarily apply to businesses that have certain minimum dollar value contracts with the city of San Francisco and subcontractors. This analysis will focus on the Article 49 Police Code.

Your business will need to comply with the new rules, and you fit the definition of an employer if:
  • You are located or doing business in the city of San Francisco;
  • You employ at least 20 employees (in the city or elsewhere); &
  • The employment (virtually any kind – paid, unpaid, seasonal, temporary, part-time, etc.) is physically located “in whole or substantial part, within” the city.

If you are a San Francisco employer, you cannot ask, inquire about or consider the following information at any time about an applicant or employee:

  • Arrests not resulting in a conviction (unless the charges are still pending);
  • Completion of any diversion or deferral of judgment program;
  • Expunged, sealed, dismissed and juvenile convictions;
  • Convictions older than seven years from the date of sentencing; and
  • Offenses that are not felonies or misdemeanors (infractions, for instance).

In addition, you cannot consider any permissible inquiries (conviction history and unresolved arrests) until after the first live interview with the applicant or after a conditional offer of employment is made. Prior to any inquiry, you need to provide specific notice prescribed by the Office of Labor Standards (Section 4905(b)) and still comply with the disclosure and authorizations requirements under the California Investigative Consumer Reporting Agencies Act (ICRAA) and the Fair Credit Reporting Act (FCRA).

If you do make employment decisions based on conviction history, you must conduct an individualized assessment, and only convictions and unresolved arrests that are directly related to the applicant’s ability to do the job may be considered. In addition, you must consider the amount of time that has elapsed since the conviction or unresolved arrest and any evidence of inaccuracy or of rehabilitation or other mitigating factors. There are also posting and job advertisement requirements, as well as record retention provisions. This ordinance, therefore, requires a significant amount of additional administrative and compliance tracking.

It is worth noting that the ordinance does contain some preemption language stating that the new law is not intended to create any conflict with any existing state or federal law or government agency implementing such a law. Nonetheless, the very lengthy preamble details why the Board of Supervisors felt it was important to pass this legislation and shows that this was a seriously considered measure. The Board cited numerous studies and statistics, particularly with respect to a lack of employment as a significant cause of recidivism, and they also cited other “Ban the Box” legislation.

1 “Ban the Box” is named for the box that appears on many employment applications; an applicant is asked to check the box to indicate that he or she has a criminal record. An estimated 65 million Americans (roughly 1 in 4 adults) have arrests or convictions that would show up in a background check. “Ban the Box” legislation is intended to encourage an employer to more objectively assess the relevance of a conviction by deferring their learning about it until only after they are already familiar with the applicant’s qualifications and experiences.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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