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Ban-the-Box Update: San Francisco, California Amends Current Law

San Francisco has had ban-the-box legislation in effect since August of 2014.  Its Fair Chance Ordinance (FCO) prohibits employers from inquiring about an applicant’s criminal history prior to either the first live interview or until after a conditional offer of employment is made.  More recently, on January 1st of this year, the state of California enacted a statewide ban-the-box law, taking a more restrictive approach than San Francisco.

In an apparent response, San Francisco has since amended its FCO to align more closely with that of the state of California.  The amendments, which will become effective on October 1, 2018, include the following:

  • Reducing the number of employees needed to qualify as an “employer” from twenty employees to five.
    • This mirrors the California law and means that’s even small business employers will have to ensure they are in compliance.
  • Inquiring about an applicant’s conviction history can only be done after a conditional offer of employment is made.
    • This is also the same as California’s law.  It changes the current FCO version which states that inquiries could be made after either a live interview or a conditional offer of employment.
  • Prohibiting employers from considering convictions older than seven years as measured from the date of conviction (defined as date of sentencing).
    • Note that California’s provision is measured from the date of disposition, release, or parole, allowing the more serious crimes to be accounted for, even after time spent in prison.
  • Prohibiting employers from inquiring, at any time, a conviction that has been decriminalized since the date of sentencing.
    • Note that this is more restrictive for employers, who will need to be particularly cautious when it comes to past marijuana-related criminal behavior.

Full text of the San Francisco law.

Best Practices Tip:  All San Francisco employers should review their employment applications and hiring procedures prior to the October 1st effective date of the amendments to the FCO.  Employers with five to 19 employees, who are not currently covered under the FCO, will now need to ensure they are in compliance as of October 1st

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