San Francisco 'Ban the Box' Law Broadly Affects Private Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
August 13, 2014
A new San Francisco "ban the box" ordinance takes effect today and affects all employers in the City and County of San Francisco with 20 or more employees. "Ban the box" legislation prohibits the inclusion of the box on employment applications that prospective employees are often asked to check off if they have ever been convicted of a crime.
San Francisco's Fair Chance Ordinance goes beyond California law. A California "ban the box" law took effect on July 1 that prohibits state and local government employers from including a criminal history box on job applications, but does not apply to private employers.
Since 2006, San Francisco has banned public employers from asking criminal history questions on initial job applications. But the city's new Fair Chance Ordinance goes further. For example, it prohibits employers from asking about or seeking the conviction history of job applicants until after their first live interview. The ordinance also covers employment agencies, contractors, subcontractors and housing providers, with limited exceptions provided for jobs in child care and law enforcement.
Even after the first live interview takes place, the ordinance says that San Francisco employers may not ask about or consider the following records:
- Convictions that are more than seven years old (with the conviction date being the date of sentencing);
- Juvenile convictions;
- Convictions that have been expunged or voided; or
- Arrests not leading to a conviction, though employers may consider current pending arrests.
Municipalities have tended to be in the forefront on this issue. In all, nearly 70 cities and counties have removed conviction questions from their job applications. Philadelphia, Seattle, Baltimore, Buffalo and Newark, NJ are among the cities that have passed ordinances limiting an employer's criminal history inquiries by private employers.
The San Francisco suburb of Richmond has perhaps the most sweeping "ban the box" ordinance in the US. The Richmond ordinance bans private employers that contract with the city and have 10 or more employees from asking job applicants about their criminal history at any point in the hiring process. The law applies regardless of where the employer is based. It does make exceptions for positions the city deems "sensitive," such as for police officers, school teachers and jobs working with the elderly.
Six states have enacted "ban the box" criminal history laws that apply to most private employers. These include:
- New Jersey; and
- Rhode Island.
Seven other states, including California, have "ban the box" measures that are limited to public employers.
The Equal Employment Opportunity Commission (EEOC) stated in a 2012 Enforcement Guidance that before any employer precludes an applicant with a criminal record from employment, it should give the applicant a chance to explain the circumstances and why he or she should not be excluded.