EMPLOYMENT LAW NEWS
Effective August 10: San Francisco Expands Fair Chance Ordinance Protections and Raises Penalties
By Dana Holle, Counsel and Manager,
Effective August 10, San Francisco’s Fair Chance Ordinance adds new protected categories of arrest and conviction history employers cannot consider, updates adverse action notice timelines, and raises penalties for violations, some more than doubling.
San Francisco employers should take note of a recent amendment to its Fair Chance Ordinance. The amendment adds new protected categories of arrest and conviction history employers cannot consider and increases penalties for violations. Here’s what employers need to know.
What Is San Francisco’s Fair Chance Ordinance?
San Francisco’s Fair Chance Ordinance (FCO) is a ban-the-box law that regulates the use of criminal history in certain employment and housing decisions. The FCO prohibits employers with five or more employees located or doing business in San Francisco from asking about arrest or conviction records until after a conditional offer of employment. It also restricts covered employers from altogether considering certain types of arrests and conviction records of applicants and employees.
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Expanded Arrest or Conviction Records That May Not Be Considered
San Francisco’s Ordinance No. 128-26 amends what employers cannot consider. Effective August 10, employers may not use out-of-state criminal convictions or arrests for conduct that is lawful in California related to:
- Abortion-related healthcare
- Drag performances
- Gender-affirming care
- Spontaneous abortion
The amendment adds to the current list of arrest or conviction records that may not be considered under the FCO:
- Arrests that did not lead to conviction (except unresolved arrests)
- Participation in a diversion or deferral of judgment program
- Convictions that have been dismissed, expunged, invalidated, or inoperative
- Juvenile justice system convictions
- Non-felony, non-misdemeanor offenses (e.g., infractions)
- Convictions more than 7 years old (unless the role involves supervising minors or dependent adults)
- Convictions for decriminalized conduct, including non-commercial cannabis use or cultivation
Updated Adverse Action Procedure
Ordinance No. 128-26 also updated its Adverse Action procedure. If a covered employer bases an adverse action on the applicant or employee’s conviction history and the applicant or employee gives notice of evidence of inaccuracy, the employer must now confirm receipt of the notice within 14 days. The employer must also notify the applicant or employee of a final adverse action based on conviction history within 30 days of receiving the notice.
Increased Penalties
Penalties also increase on August 10. A first violation of San Francisco’s FCO may result in a $1,000 penalty, up from $500. For a second violation, the penalty increases from $1,000 to $2,000. Any subsequent violations may now result in a penalty of $4,000, which is double the previous penalty of $2,000.
Next Steps for Employers
With expanded protections and steeper penalties on the horizon, covered employers should review their background check and adverse action processes now. Given the upcoming changes, it is expected that San Francisco’s Fair Chance Ordinance labor law poster will also receive an update. GovDocs is currently monitoring for its release for shipment out to impacted customers part of its Labor Law Poster Program.
This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.
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GovDocs simplifies employment law compliance for large, multi-jurisdiction employers in the U.S. and Canada. The GovDocs software platform integrates three solutions in one convenient place to help you master the employment laws impacting your business. Whether you manage labor law postings, minimum wage or paid leave program, our products cut through research time, provide proactive insights into the everchanging landscape of employment laws and reduce the risk of noncompliance. The company is headquartered in Eagan, Minn.
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