By Jennifer L. Lippi

 

Knowing as much as possible about an applicant’s background is key to hiring the ideal candidate.  In this pursuit, most employers require job applicants to note any criminal convictions on the employment application prior to hire consideration.  There are several recent and upcoming laws that severely limit an employer’s inquiry into convictions.

Effective January 1, 2014, California Labor Code Section 432.7 prohibits public and private sector employers from inquiring into criminal records that have been expunged, sealed or dismissed.  Employers are exempt from these requirements in the following circumstances: (1) the prospective employer is required by law to obtain that information; (2) the job position requires the applicant to posses or use a firearm in the course of his/her employment; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that crime has been judicially dismissed, expunged or sealed; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.  A similar provision in Labor Code Section 432.8 prohibits asking a job applicant or employee about convictions for minor marijuana offenses that are more than two years old.

Beginning on July 1, 2014, public sector employers are prohibited from requesting criminal conviction information on the initial employment application.  Criminal history information can still be requested on the initial application for law enforcement positions, positions working with children, the elderly or disabled or other sensitive positions.  Public sector employers are prohibited from obtaining criminal history information until the employer has determined the applicant meets the minimum qualifications for the position, thus affecting only when, not whether, these employers may consider criminal conviction history.

Ban the Box.  California joins a growing list of jurisdictions that “ban the box,” although only for public employers.  In practice, this means removing the check box questions common on many applications that ask, “Have you ever been convicted of a felony?”

San Francisco’s Fair Chance Ordinance. The City of San Francisco has taken it a step further and “banned the box” for private employers, in essence limiting the timing and scope of inquiries into an applicant’s or employee’s criminal history. San Francisco’s recently enacted Fair Chance Ordinance takes effect August 13, 2014.  The Ordinance applies to private employers located or doing business in the City and County of San Francisco with 20 or more employees (located anywhere).  The Ordinance regulates only those employees whose duties are performed in whole or in substantial part within San Francisco city limits.

Generally, the Ordinance prohibits employers from making any inquiry regarding criminal history until after an initial job interview.  Employers may ask about an applicant’s criminal history only after the first job interview or after a conditional offer of employment.  The Ordinance also prohibits employers from at any time inquiring into or taking an adverse action based on any of the following:

  1. An arrest not leading to a conviction;
  2. Participation in or completion of a diversion or a deferral of judgment program;
  3. A conviction that has been judicially dismissed, expunged, or otherwise rendered inoperative;
  4. A juvenile conviction;
  5. A conviction that is over seven years old from the date of sentencing; or
  6. An offense that is other than a felony or a misdemeanor.

It should be noted that this San Francisco Ordinance goes beyond what California law already prohibits with its focus on when the conviction occurred.  Furthermore, prior to conducting any criminal history inquiry, the employer must provide the applicant or employee with a written notice of their rights under the Ordinance.

The Ordinance also requires that the employer conduct an individualized assessment of the nature of the offense as it relates to the specific position at issue.  The offense may only be considered if it has a “direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.”  In making this determination, the employer must consider whether the position “offers the opportunity for the same or a similar offense to occur” and whether “circumstances leading to the conduct for which the person was convicted will reoccur.”  The individualized assessment also requires consideration of the time that has elapsed since the conviction and any evidence of mitigating factors and rehabilitation effectors specific to the individual applicant or employee.

If an employer decides to take adverse action based on criminal history information the Ordinance requires that they must first notify the applicant or employee in writing of the intended decision, and allow the applicant or employee seven days to respond with any evidence of inaccuracy in the information or to describe any evidence of inaccuracy.  They must also provide a copy of the background check or criminal conviction report.  Upon receiving such response, the employer must wait an additional reasonable time to reconsider the prospective adverse action in light of the new information.  After the employer has allowed the employee adequate time to respond, the employer may take final adverse action based upon the conviction history, but must notify the employee that the final adverse action was taken because of the conviction history.

The Ordinance also contains disclosure, posting, and recordkeeping requirements.  A covered employer must state in all job solicitations or advertisements that the employer will consider applicants with criminal histories in a manner that is consistent with its provisions.  Employers must also post a notice published by San Francisco’s Office of Labor Standards Enforcement (OLSE) that informs applicants and employees of their rights under the Ordinance.  Employers are also required to retain for a period of three years employment application forms, interview notes, criminal background reports, and applicant response to inquiries and prospective adverse actions.

A copy of the San Francisco Fair Chance Ordinance can be found here:

Here are some takeaways (from our perspective):

  1. Revisit hiring practices and revise employment applications to instruct applicants not to disclose any information about convictions that have been expunged, dismissed or sealed to ensure compliance with the law. Our Silvers HR sample employment application is available on our HR library for our retained clients.
  2. Assess thoroughly whether your job application, including questions about prior criminal records, complies with state and local laws where you operate and hire. Any employer who is located in San Francisco or contracts with San Francisco should revise all job application forms, advertisements, and job postings.
  3. Train hiring personnel as to what questions may be asked during the initial interview and how to process an individualized assessment when evaluating an applicant’s conviction history.

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