San Francisco Fair Chance Ordinance

If you are applying for a job with a company located in or doing business in the City or County of San Francisco, read this Appendix!

What is San Francisco’s local “Ban the Box” law called?

It is called San Francisco’s Fair Chance Ordinance (SFFCO). It went into effect on August 13, 2014.[2084]

Who does SFFCO apply to?

SFFCO applies to private employers with 20 or more employees[2085] and city contractors and subcontractors[2086] located or doing business in the City and County of San Francisco. It does not matter where the employees are physically located, as long as the employer is located in or doing business in San Francisco.

Can private employers in San Francisco have “blanket bans” against criminal records in a job ad or solicitation?

No. Employers cannot put “blanket bans” (like “no felons” or “no convictions”) in any job ad or solicitation. Ads cannot directly or indirectly express that individuals with a conviction history will not be considered for employment or cannot apply for a position with that employer. The employer MUST:

    State in any job ads or solicitations that it will consider applicants with criminal histories;
    Post in any workplace a notice of your rights as a job applicant or employee under the SFFCO. (This notice must be in the language(s) that the majority of the employees speak.)

WHAT can’t a private employer in san francisco ask me about my criminal record under SFFco?

A private employer in San Francisco may never ask about or consider:

    An arrest not leading to a conviction (except arrests that are still pending or unresolved).
    Participation in a diversion or deferral of judgment program. A diversion program (such as a drug rehabilitation program) helps a person charged with certain crimes avoid criminal charges—and therefore a criminal record.
    A conviction that has been sealed, dismissed, expunged, or made inoperative.
    Juvenile records.*
    A conviction more than 7 years old (based on the date of sentencing).*
    A criminal offense other than a felony/misdemeanor (for example, an infraction, which is a petty offense that usually comes with a ticket and small fine).[2087] *

NOTE: All records marked with a * indicate additions to the California state law protections described on PG. 564.

WHAT can a private employer in San Francisco ask me about my criminal record?

AFTER you are found to be qualified for the job, a live interview has been conducted, or a “conditional offer” of employment has been made, only then can a private employer in San Francisco ask about and consider information from your criminal record—it can only consider the following:

    Your conviction history from the last 0-7 years (based on date of sentencing)—so long as it is not one of the 6 things a private employer in San Francisco can NEVER ask about (listed above) and is directly related to your ability to do the job.
    Your pending or unresolved arrests—if directly related to your ability to do the job.[2088]

ADDITIONAL REQUIREMENT: If a private employer in San Francisco decides to ask about and consider your conviction history from 0-7 years ago or any pending/unresolved arrests, then the employer must also consider:

    Only “directly-related convictions”—those that directly and negatively relate to your ability to perform duties essential to the job. For example: Will the job give you an opportunity to commit the same crime? Are the factors that led to your crime likely to recur at this particular job? If not, then the employer cannot consider those convictions;
    The time that has passed since your conviction; AND
    Any evidence of errors in your record, your rehabilitation efforts, or other helpful information you offer. This would include things like:
    Completion of parole or probation;
    Recommendations from employers;
    Education or vocational training;
    Completion or active participation in rehabilitation programs;
    Letters of recommendation from organizations or individuals who have interacted with you since your conviction.

WHEN can a private employer in San Francisco ask about my criminal record? What does the process look like?

PHASE 1: At the beginning of the hiring process, a private employer located or doing business in San Francisco cannot ask about:

    Your conviction history — meaning the employer cannot ask about your criminal convictions on a job application form, during a job screening, in an informal conversation, or otherwise.
    Your pending or unresolved arrests, whether in a job application form, during a job screening, in an informal conversation, or otherwise.[2089]

PHASE 2: The employer must decide that you meet the minimum qualifications for the job, conduct a live interview, or make a conditional offer of employment before asking about or considering certain information in your criminal record.

PHASE 3: Before a private employer in San Francisco can about your convictions from 0-7 years ago or any unresolved arrests that directly relate to your ability to do the job, it must:

    Give you notice of the Fair Chance Ordinance; and
    Give you notice that follows the requirements of California state and U.S. federal laws governing employment background checks.

PHASE 4: Only AFTER a private employer in San Francisco has conducted a live interview or made a conditional offer of employment AND has given you all the required notice under federal law, state law, and the SFFCO law, can the employer use information in a background check report, ask about, and consider:

    Your conviction history from the last 0-7 years, if it is outside of the 6 things you can never ask about (discussed above) AND if it directly relates to your ability to do the job.
    Your pending or unresolved arrests, if they directly relate to your ability to do the job.[2090]

PHASE 5: Before a private employer in San Francisco fires, refuses to hire, chooses not to promote, or takes other action that harms you based on a conviction history from 0-7 years ago or an unresolved arrest, the employer must give you an opportunity to present evidence that:

    The information is inaccurate;
    You have been rehabilitated, including letters of support and other evidence that you have:
    Satisfied and completed the terms of parole/probation;
    Received education and/or training;
    Participated in alcohol or drug treatment programs;
    Letters of recommendation;
    Been free of criminal behavior for a sufficient time period to have changed, based on your age at the time of the conviction; and
    All other mitigating factors that led to the conviction and explain or reduce the severity of your criminal behavior, including evidence of:
    Coercion (you were forced or threatened into doing the illegal act);
    Physical or emotional abuse (you were experiencing physical or emotional violence that led him/her to do the illegal act); and/or
    Untreated substance abuse/mental illness that contributed to the conviction (you were addicted to drugs or alcohol, or had a serious mental health issue, and had not received specialized health care treatment for one of those issues). [2091]

What if the employer still decides to not hire or promote me, fires me, or takes some other negative employment action against me?

Before the employer makes a final decision about any negative action against you, it must:

    Give you with a copy of the background check report that it based its decision on;
    Notify you that it intends to take negative action against you;
    Tell you why you were denied (what the exact issue was in your conviction history); and
    Give you 7 days to provide information about any errors in you report or your rehabilitation efforts.

What happens after the 7 days?

The employer may take a reasonable amount of time to reconsider your application in light of any additional information you have offered. It is recommended that you use that one-week period to be very proactive in clearing up information in your record, providing evidence of errors or rehabilitation, etc. If the employer still decides not to hire you based on your conviction history and all the information you have provided, it must give you final notice of its decision.

What You Can Do If An Employer Violated The San Francisco Fair Chance Ordinance (SFFCO):

What can I do if I think a San Francisco employer has violated the SFFCO?

NOTE: Good Faith Mistakes are OKAY.

There is no punishment for mistakenly accusing an employer of violating the SFFCO, so long as the mistake was in good faith (meaning you weren’t being malicious or trying to abuse or harass the employer).

You can report the violation to San Francisco’s Office of Labor Standards Enforcement (OSLE), and you have 60 days to do so. Call the OSLE office at (415) 554-5192. You can also email the office at [email protected] (see the OLSE website at: www.sfgov.org/olse/fco for more information).

Can the employer retaliate against me for reporting a violation to the OSLE?

No. An employer may not retaliate against you for exercising your legal rights or for cooperating with the Office of Labor Standards Enforcement (OSLE).

What happens when I report a violation?

First, San Francisco’s OLSE will investigate the employer. Second, if the OLSE finds a violation, it may “order any appropriate relief.” This usually means that the OLSE will give a warning or fine the employer:

    If it is the employer’s first violation, or if it occurs before August 13, 2015 (any time in the first year that the SFFCO law is in effect), the OLSE will issue a warning and give the employer a chance to change its policies.
    If there are additional violations after the first warning, the OLSE will begin fining the employer for each violation.
    If the employer refuses to comply in a timely manner, OLSE may refer the case to the City Attorney to file a civil action against the employer for relief.

Can OLSE force the employer to give me the job?

Probably not. In general, OLSE will NOT force an employer to hire someone, even if the employer violated the law by rejecting you for the job. However, OLSE has been very successful at resolving violations informally, simply by talking with the employer and applicant. For example, OLSE might ask the employer to reconsider your application, give you the opportunity to apply for another job, or let you submit a new application without prejudice.[2092]

  1. 2084

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  2. 2085

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  3. 2086

    S.F. Admin. Code § 12T. ↑

  4. 2087

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  5. 2088

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  6. 2089

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  7. 2090

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  8. 2091

    S.F. Police Code, Art. 49, San Francisco’s Fair Chance Ordinance. ↑

  9. 2092

    Telephone call with Donna Mandel, Compliance Officer, SF Office of Labor Standards (Feb. 20, 2015). In addition, the law has an unfortunate loophole that allows employers to lawfully reject an applicant if the conviction is “directly-related” the position, and OLSE has NO authority to judge or enforce what qualifies as a “directly-related conviction.” S.F. Police Code §§ 4904(f), 4909(a)(1) (San Francisco’s Fair Chance Ordinance, effective Aug. 13, 2014). ↑