New San Francisco Ban the Box Law Affects Private Employers

Author: David B. Weisenfeld, XpertHR Legal Editor

February 24, 2014

San Francisco has become the latest city to enact a Ban the Box law that applies to private employers. On February 17, Mayor Edwin Lee signed the ordinance which covers employers in the city with 20 or more employees and takes effect on August 13.

Ban the Box refers to the box on employment applications that prospective employees are often asked to check off if they have ever been convicted of a crime. More than 50 cities have enacted these laws, but many are limited to city job applications. In extending this prohibition to private-sector employers, San Francisco has followed the lead of Seattle, Buffalo and a few other cities.

Since 2006, San Francisco has prohibited public employers from including criminal history inquiries on initial job applications. But this new law, known as The Fair Chance Ordinance, goes quite a bit further.

For instance, the ordinance also bars employers from asking about or obtaining the conviction history of job applicants until after their first live interview. And, it includes employment agencies, contractors, subcontractors and housing providers. Limited exceptions are provided for jobs in child care and law enforcement, where an applicant's criminal history is directly relevant.

California Governor Jerry Brown signed a law late last year that prohibits state and local government employers from including a criminal history box on job applications. The measure takes effect July 1, 2014, but does not apply to private employers.

In all, 10 states have enacted Ban the Box laws, but the following four states are the only ones whose laws apply to both public and private employers:

  • Hawaii;
  • Massachusetts;
  • Minnesota; and
  • Rhode Island.

The Equal Employment Opportunity Commission (EEOC) has taken the position that no employer should ask about criminal history on job applications. The EEOC also made clear in an April 2012 Enforcement Guidance that before any employer precludes an applicant with a criminal record from employment, it should engage in an individualized assessment to give the applicant a chance to explain the circumstances and why he or she should not be excluded from employment.