The San Francisco Board of Supervisors has prohibited the widely used criminal history check box for employment applications. Unless Mayor Ed Lee vetoes, the “ban the box” ordinance becomes law today. In addition to banning the box, the new San Francisco legislation imposes a host of additional new restrictions on the use of criminal history for employment purposes. These restrictions are in addition to those already imposed by the federal Fair Credit Reporting Act (FCRA).
BAN-THE-BOX REQUIREMENTS (NOT JUST SAN FRANCISCO)
Many jurisdictions have similar ban-the-box regulations, although they differ significantly in timing of when questions regarding criminal history can be asked. The jurisdictions with restrictions include:
- Massachusetts: any time after the initial application
- Seattle: after initial screening of applicants to eliminate unqualified applicants
- Minnesota : after the applicant has been selected for an interview
- Buffalo. N.Y. and Rhode Island: at the first interview
- Philadelphia and San Francisco: after first interview
- Hawaii and Newark. N.J.: after a conditional offer of employment.
REQUIREMENTS AND ENFORCEMENT
The poster must provide the following information in English, Spanish and Mandarin:
- the criminal history information that employers are prohibited from considering
- the restrictions on employers' inquiry into criminal history
- the individual's right to submit information about rehabilitation and mitigating factors, a list of those factors and the timeline for providing the information
- contact information for the OLSE to report suspected violations.
The OLSE is required to publish this poster within six months after the ordinance goes into effect.
The consequences of non-compliance allow the city to pursue civil remedies for violation of the ordinance, including an injunction, reinstatement of the employee, back pay, benefits, $50 per employee for each day the ordinance was violated, and attorneys' fees and costs. Additionally, employers must retain records related to the hiring process (this will include advertisements) for three years and provide them to the OLSE for inspection upon request.
ADDITIONAL RESTRICTIONS ON USE OF CRIMINAL HISTORY FOR EMPLOYMENT PURPOSES
The ordinance prohibits employers from asking about arrests other than those for which charges are still pending, the completion of a diversion program, sealed and juvenile offenses and infractions that aren't felonies or misdemeanors. In addition to the first interview having to have occurred before making an allowed inquiry, employers must provide the applicant with a notice containing information that is listed in the above described poster.
If an applicant does disclose criminal history, San Francisco employers are still limited in what they can do with the information. The Ordinance provides that the employer can consider the information only if it has “a direct and specific negative bearing on [the applicant's] ability to perform the duties or responsibilities necessarily related to the employment position.”
The ordinance also stipulates that if the employer decides to reject an applicant based on criminal history, it must provide a pre-adverse action notice and a final adverse action notice. The pre-adverse action notice requirement varies from the Fair Credit Reporting Act's (FCRA) pre-adverse action notice requirement in several important respects. First, the notice must be provided regardless of whether the employer obtains the criminal history information through the applicant's self-disclosure or a background report provided by a consumer reporter agency. Second, the notice must identify the specific criminal history that provides the basis for the adverse decision. Third, the employer must wait at least seven days from the date of the notice before taking final adverse action. Finally, if during the seven-day waiting period the applicant disputes the criminal history or provides information regarding rehabilitation or mitigating factors, the employer must wait a “reasonable time” before taking adverse action.
RECOMMENDATIONS FOR EMPLOYERS
- Revise job advertisements to include required language.
- Post the required poster after the OLSE publishes it.
- Review their employment application to remove questions about criminal history.
- Revise their hiring procedures to delay inquiry about criminal history until after the first live interview.
- Develop a criminal history questionnaire that (a) limits the inquiry as permitted by the Ordinance, and (b) includes the required notice.
- Ensure that applicants who likely will be rejected based on criminal history receive a pre-adverse action notice that complies with both the ordinance and, if the employer received a background report from a background check vendor, the FCRA.
- Establish a minimum seven-day waiting period before sending a final adverse action notice and an additional waiting period if the applicant submits evidence of rehabilitation or mitigating factors.
- Retain all documents demonstrating compliance with the ordinance for at least three years.
For more information, contact Parker via the CRA Legal Center at 800.765.4842, Ext. 2743.