Amendment to the City & County of San Francisco Fair Chance Ordinance.

The San Francisco Board of Supervisors passed an amendment to the city and county Fair Chance Ordinance (FCO) in April 2018. The official law took effect on October 1, 2018.

The new amendment broadened the scope of the ordinance to cover all employers with five or more employees. The Fair Chance Ordinance mandates employers to follow strict procedures pertaining to applicants’ and employees’ conviction and arrest record(s).

Employers with five or more employees company-wide, including city contractors, subcontractors, and lease holders, are subjected to the Fair Chance Ordinance.

This pertains to positions in which the employee performs duties at least eight hours per week in San Francisco, including contract, seasonal, temporary, part-time, contingent workforce, and even commission-based work.

The ordinance also covers employment agencies, staffing agencies, and any form of education or vocational training (paid or unpaid).

The Fair Chance Ordinance prevents employers from considering the following:

• Arrest records only, non-convictions
• Involvement in any diversion or deferral of judgment course
• A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative
• Any convictions for juvenile offenses
• An offense other than a felony and/or misdemeanor (not infractions)
• Convictions older than seven years from the disposition date or release from prison (unless the position being considered supervises minors or dependent adults)
• Convictions for legal conduct, involving the non-commercial use and cultivation of marijuana

In addition to this, the Fair Chance Ordinance requires covered employers to:

• Disclose in all job postings and solicitations that eligible applicants with arrest and conviction public records will be considered for the position in compliance with this ordinance. (Suggested language: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider qualified applicants with arrest and conviction records for employment.”)
• Clearly and visibly place the official FCO notice in all job sites and workplaces under the business’ control
• Before taking adverse action such as failing or refusing to hire, discharging, or not promoting an individual based on a conviction history or unresolved arrest, give the individual an opportunity to present evidence that the information is inaccurate, the individual has been rehabilitated, or other mitigating factors (following procedures outlined in Police Code Section 4909 or Administrative Code Section 12T.4)
• Employers are responsible for providing yearly compliance reports to the Office of Labor Standards Enforcement (OLSE)

Additionally, employers covered by the Fair Chance Ordinance must display the poster featured above explaining the FCO, along with providing a copy to an applicant before inquiring about previous criminal history.

Employers can stay up-to-date of new and changing Ban-the-Box laws and Fair Chance Act initiatives by downloading our newest Ban-the-Box infographic, which is periodically updated to provide all states, counties, cities, and municipalities nationwide that have implemented some form of Fair Chance Act initiatives.

If employers fail to comply with these laws, fines, and penalties may be in the millions since there is not a capped amount associated with violations of the FCRA. Professional applicants may also maliciously set up employers who are not in compliance with Ban-the-Box laws for the applicant’s own personal gain, even if no actual harm was done.