San Francisco Law Limits Employer Background Checks

New laws recently enacted by San Francisco affect employers with location in that city. Below is a summary of the employers obligations to meet compliance.

The Fair Chance Ordinance

Employers in San Francisco are barred from inquiring about criminal background histories or conducting a background check until it is determined that the applicant meets all other requirements for the position. Employers may only ask questions regarding conviction history only after the first live interview. Employers may never ask about arrests not leading to a conviction. Employers cannot inquire about participation in or completion of a diversion or a deferral of judgment; dismissed or expunged convictions; juvenile convictions or adjudications; convictions more than seven years old; or offenses other than a felony or misdemeanor.

If a past conviction is disclosed, employers must perform an individualized assessment which considers the position being offered, the opportunity for the same or similar offense to occur, the age of the conviction and other mitigating factors.

Before taking adverse action against, the employer must provide a copy of the report and notice of pre-adverse action and the specific basis for the action. The applicant/employee then has the right to dispute inaccurate information which may be contained in the report. If the employer proceeds with adverse action, they must provide the final notice of action.

The ordinance will go into effect on August 13, 2014.

It covers all employees who perform work in the City and County of San Francisco whose employers are located or doing business in the City and who have 20 or more employees (regardless of their location).

Employers are required to post a notice from the San Francisco's Office of Labor Standards Enforcement (OLSE) that details the applicant/employee rights under the Ordinance and a copy of the notice must be given to the applicant/employee before a criminal background check is conducted.

  • First Violation - warning
  • Second Violation - $50 administrative penalty for each applicant/employee
  • Subsequent Violations - $100 administrative penalty for each applicant/employee
  • Applicant/Employees may seek reinstatement, back pay, payment of benefits or salary unlawfully withheld, $50 liquidated damages per employee and injunctive relief.

Ordinance Number 131192