San Francisco’s Amended Fair Chance Ordinance Takes Effect With Updated Notice Requirements

On October 1, 2018, San Francisco’s amendments to its Fair Chance Ordinance (FCO) took effect. The FCO is San Francisco’s “ban the box” equivalent that regulates employers’ use of applicants’ and employees’ arrest and conviction information.

The FCO amendments made the following changes to San Francisco’s existing FCO:

• An employer is now restricted from inquiring about, requiring disclosure of, and/or using applicants’ and employees’ arrest and conviction information in an employment decision until after the employer makes a conditional offer of employment.
• The scope of the ordinance is expanded to cover employers with five or more employees (whether those five employees work inside or outside the city), that hire for positions that will require work of at least eight hours per week within the city. This work includes temporary, seasonal, part-time, contract, contingent, and commission-based work.
• Employers are further restricted from asking about or using convictions for decriminalized behavior, such as convictions for the noncommercial use and cultivation of cannabis.
• Penalties for violations of the FCO are increased to $500 for a first violation; $1,000 for a second violation; and $2,000 for subsequent violations.
• An affected individual can now sue an employer directly.
• Employers must now pay penalties to persons affected instead of to the City of San Francisco.

 

The City of San Francisco also recently released an updated four-page notice/poster that went into effect on October 1, 2018. The poster explains the FCO’s requirements in four different languages: English, Chinese, Spanish, and Tagalog. An employer is required to “post this notice in English, Spanish, Chinese, and any other language spoken by at least 5% of the employees at the workplace or job site.” Employers must also provide the notice/poster to applicants and employees, in all four languages, before conducting criminal background checks.

Finally, covered employers should remember that they must complete and submit the City’s Employer Annual Reporting Form by April 30 of each year. The form includes information regarding employers’ compliance with the FCO.

Further information on federal, state, and local background check requirements is available in the firm’s OD Comply: Background Checks subscription materials, which are updated and provided to OD Comply subscribers as the law changes.