Quick Hits
- San Francisco recently amended its Fair Chance Ordinance to prohibit employers from making adverse employment decisions based on out-of-state criminal convictions or arrests for abortion, miscarriage, gender-affirming care, and drag performances.
- If an employer sends notice to a candidate or employee regarding an intent to take adverse action based upon a criminal history and the candidate or employee timely responds, the employer must send a reply within fourteen days, confirming receipt.
- The amendments increased administrative penalties and potential liquidated damages for violations.
- The legislation took effect on August 10, 2026.
Employers in San Francisco must comply with both the statewide Fair Chance Act and the San Francisco Fair Chance Ordinance.
San Francisco’s Fair Chance Ordinance already prohibited employers in San Francisco with more than five employees anywhere from inquiring about prior arrests and convictions on job applications or before presenting a conditional job offer. The Fair Chance Ordinance applies to adverse employment actions, including refusing to hire, discharging, or refusing to promote an individual. The law covers full-time, part-time, temporary, seasonal, and contingent workers, as long as they work at least eight hours per week in San Francisco.
Under the new amendments, covered employers may not consider out-of-state convictions or arrests regarding conduct that is lawful under California law and:
- has the primary aim of seeking, performing, providing, receiving, or facilitating the services by or of a physician or other medical professional to terminate a pregnancy;
- is related to actions taken by a person regarding miscarriage or seeking, performing, providing, receiving, or facilitating the services by or of a physician or other medical professional related to miscarriage;
- is conduct related to a stillbirth;
- is related to seeking, performing, providing, receiving, or facilitating medical care, support, or advocacy for the purpose of addressing disparities between any person’s gender identity and their physiology or perceived gender identity, including hormone replacement therapy, surgical procedures, and changes to a person’s name or gender marker;
- is related to using a gendered facility that corresponds with one’s gender identity and/or playing on a sports team that corresponds with one’s gender identity;
- is related to a public, artistic performance characterized by exaggerated displays of femininity or masculinity, in some instances demonstrated by wearing clothing associated with a different gender than the person’s assigned gender at birth.
The city government or an individual may bring a civil action for violations. The amendments increased potential liquidated damages from $500 to $1,000 for each affected employee or applicant. The administrative penalty also increased from $500 to $1,000 for each affected employee or applicant for a first violation, from $1,000 to $2,000 for a second violation, and from $2,000 to $4,000 for subsequent violations.
The new amendments added a procedural requirement if the employer intends to take adverse action based upon a conviction history. The San Francisco ordinance already required an employer to make an individualized assessment of the information, send the report to the candidate, notify the candidate of the potential adverse action (pre-adverse action letter), and give the candidate seven days to respond. (Under California state law, the amount of time for the candidate to respond differs from San Francisco’s rule and depends on how the employer sends the notice.) Now, under the new San Francisco amendment, if the candidate does timely respond, the employer must reply within fourteen days to confirm receipt and reconsider the decision in light of the candidate’s response. Further, the amendment requires employers to send any final notice of adverse action (adverse action letter) within thirty days of receiving information from the candidate. If the candidate did not provide additional information, the employer must send the adverse action letter within thirty days of sending the pre-adverse action letter.
San Francisco’s amendments reflect the many ways in which California state law differs from laws in other states. For example, California state law protects the right to access abortion and contraception, prohibits insurers and healthcare providers from denying or restricting gender-affirming care, prohibits prosecution of people based on their actions or omissions with respect to their pregnancy or pregnancy outcome, and prohibits prosecution of people based on their actions to aid or assist a pregnant person who is exercising their reproductive rights.
Next Steps
Employers in San Francisco may want to ensure compliance with both California state law and San Francisco’s amended Fair Chance Ordinance by reviewing job applications, background check procedures, and communications processes. Before declining a candidate based on criminal history, employers must conduct an individualized assessment, notify the candidate, provide a copy of the background check, give the candidate a certain amount of time to respond, and now in San Francisco, confirm receipt of any response. The employer must then reconsider based on evidence the candidate provides.
Ogletree Deakins’ Background Checks Practice Group and San Francisco office will continue to monitor developments and will post updates on the Background Checks and California blogs as more information becomes available.
California pre-adverse action letters, adverse action letters, and California and San Francisco law summaries (timing, arrests, convictions, pre-adverse action process, adverse action process) are available on the Ogletree Deakins Client Portal to Premium-level subscribers. For more information on the Client Portal or a Client Portal subscription, reach out to clientportal@ogletreedeakins.com.
Cara F. Barrick is a shareholder in Ogletree Deakins’ San Francisco office.
Joel H. Kosh is of counsel in Ogletree Deakins’ San Francisco office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
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