Resource Center

San Francisco’s Fair Chance Ordinance (FCO): A Quirky Problem with "off-limits' criminal records

Question: The FCO prohibits employers from considering a criminal conviction that is more than 7 years old. How are the 7 years to be measured?

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” rules became operative for businesses on August 13, 2014. In a previous Compliance Issue Analysis titled, “Ban the Box,” we addressed these requirements for employers. In this edition, a nuance in the law has been identified that can be problematic for some employers—how do we measure the time beyond which convictions should be considered?

The FCO considers “Off-Limits” by employers: “A conviction that is more than 7 years old [measured from the date of sentencing].” This is in contrast with most federal and states laws (including the statewide criminal reporting law in California1), which limit employers and/or consumer reporting agencies from reporting criminal convictions, “from the date of ‘disposition, release, or parole’.”

Our standard reporting complies with California’s statewide rule, which requires consumer reporting agencies not to report “records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years ... .” This is different than 7 years from the date of sentencing as required under the FCO.

The more logical reporting practice is pursuant to the statewide regulation that requires reporting from date of disposition, release or parole—which is some time after the end of the adjudication process. In other words, in the example above, if someone is sentenced 8 years ago to a 10-year prison term, we are able to report from the date that the prison term has ended—thereby giving our clients a more complete picture of the conviction information.

Our standard reporting practice is to apply the California statewide reporting guidelines. If you wish us to apply the San Francisco FCO suppression guideline—which is 7 years from the date of sentencing—please contact us to discuss how this can be implemented.

Before implementing an online employment application form, employers should ensure that the form meets all FCRA requirements and is fully compliant with all applicable laws. If your company allows applicants to apply for employment using more than one method, such as through a website and also through a paper employment application, it is critical that every application form used by your company be FCRA compliant.

Recently Issued FAQs:

Recently, the San Francisco Human Rights Commission (HRC) issued FAQs that further explain and clarify the FCO. Visit http://sf-hrc.org/fair-chance-ordinance for more information about the Ordinance and visit http://sfgsa.org/modules/showdocument.aspx?documentid=12136 for a copy of the FAQs.


1Civil Code § 1786.18(7)

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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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