Recently the San Francisco Board of Supervisors passed substantial amendments to the San Francisco Police Code by restricting use of criminal records by covered employers. Restriction with regard to employer inquiries about criminal records is widely termed “ban the box”. The Ban the Box Movement continues to gain momentum as states, cities and counties recognize the need to support fair economic vitality. According to the National Employment Law Project, “ban-the-box campaigns provide a platform to educate the public about the stigma of a criminal record and the real consequences to our society of depriving millions of Americans with past convictions of economic stability”.
Let’s examine some important provisions of San Francisco’s “Ban the Box” ordinance and how they affect employers.
When is the law effective? August 13, 2014
Under the law, an “employer” covers any
- Individual,
- Firm,
- Corporation,
- Partnership,
- Labor Organization,
- Group of Persons,
- Association, and
- Job Placement, Referral and Employment Agencies.
Furthermore, affected employers are those that employ 20 or more persons regardless of location, including the owner or owners and management and supervisorial employees and are located in OR doing business in the City and County of San Francisco.
“Employment” means any
- Occupation,
- Vocation,
- Job or Work,
- Temporary or Seasonal Work,
- Part-time Work,
- Contract Work,
- Contingent Work,
- Work on Commission, and
- Any form of vocational or educational training with or without pay.
The physical location of the employment or prospective employment of an individual must be in whole or in substantial part, within the City and County of San Francisco.
What is prohibited?
With regard to employees and applicants or potential applicants, an employer cannot, at any time or by any means, inquire about, or require disclosure of the following:
- Arrests not leading to conviction (exceptions include “unresolved arrests”),
- Participation in or completion of a diversion or a deferral of judgment program,
- Convictions that are judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code Sections 1203.4, 1203.4(a) or 1203.41,
- Convictions or any other determinations or adjudications in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system,
- Convictions more than seven (7) years old (date of conviction being the date of sentencing), or
- Information related to an offense other than a felony or misdemeanor (ex. an infraction).
Additionally, employment applications cannot include questions that require an individual provide facts or details of any conviction history, any unresolved arrest, or any matter identified in subsections (a) (1).
Among other requirements, employers must provide specified notices to individuals when lawful inquiries are made.
Notice Requirements
- Solicitations or advertisements that an employer disseminates must state that the employer will consider qualified applicants with criminal histories in a manner consistent with the law.
- Employers must also post notice in English, Spanish, Chinese and all other languages spoken by more than 5% of the San Francisco workforce informing applicants of their rights under the law. The notice must be posted for viewing by employees and applicants in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer’s control. Additionally, the notice must be sent to each labor union or representative of workers where there is a collective bargaining or other type of agreement that is applicable to employees in San Francisco.
Housing Provider Notice Requirements
- Solicitations or advertisements for the rental or lease of affordable housing placed by the housing provider or on the housing providers behalf must state that the housing provider will consider qualified applicants with criminal histories in a manner consistent with the law.
- Housing providers must post notice in English, Spanish, Chinese and all languages spoken by more than 5% of the San Francisco population that informs applicants of their rights under the law. The notice must be prominently posted on the housing provider’s website and at any location under their control so that applicants and potential applicants for the rental or lease of affordable housing in San Francisco can view it.
Compliance Poster Company’s (CPC) Legal HR Research and Compliance Team will have more details on the notice, form and fashion, as the effective date approaches. Clients will receive CPC email communications when the official notice is available for purchase.