Employment Practices Update – San Francisco Bans the Box

San Francisco has recently passed “ban the box” legislation, which will restrict the questions private employers can ask about applicants’ criminal records on job applications and during interviews. The new rules take effect August 13, 2014, and apply to private employers located in or doing business in San Francisco, with at least 20 employees regardless of location. Consequently, an Ohio company with even a small SF presence could be subject to the rule, provided the company’s total headcount is at least 20 employees. The rule also applies to job placement and referral agencies.

The new rule prohibits employers from asking about or requiring disclosure of:

  • Arrests not leading to a conviction,
  • Participation in or completion of a diversion program,
  • Convictions that have been dismissed, expunged, voided, invalidated, or otherwise rendered inoperative,
  • Juvenile convictions,
  • Convictions more than 7 years old (from date of sentencing), or
  • Information pertaining to offenses other than a felony or misdemeanor, such as an infraction.

In addition, employers may not inquire about or require disclosure on an employment application about any conviction history, any unresolved arrest, or any of the items listed above.

Employers cannot inquire about or require disclosure of any conviction history or unresolved arrest until after the first live interview with an applicant, whether that interview is conducted by telephone, videoconference, other technology, or in person. Before asking about any conviction history, the employer must provide the applicant with a statutory notice from the Office of Labor Standards Enforcement of their rights under the law. The notice must be in English, Spanish, Chinese, and any other language spoken by 5% of the SF workforce.

Finally, the new rule restricts the kind of information on which employers can base adverse employment actions, which include refusals to hire or promote, or decisions to discharge an employee. In making an employment-related decision based on an applicant’s conviction history or unresolved arrest, the employer must conduct an individualized assessment, considering only directly-related convictions, the time that has elapsed since any conviction or unresolved arrest, any evidence of inaccuracy, and any evidence of rehabilitation or other mitigating factors. If the employer decides to base an adverse employment action on the applicant’s or employee’s conviction history, prior to taking such action the employer must provide the applicant/employee with a copy of his or her background check report, if any, and a notice describing the prospective adverse action and the basis for taking such action.

While the implementation of the new rules are several months off, employers should start familiarizing themselves with the new requirements, prepare new application forms that comply with the law, and begin training people involved in the hiring process.