San Francisco Compliance Update Reminder

We want to remind San Francisco based employers that the San Francisco “Ban the Box” went into effect on August 18^th.  This regulation in addition to when an employer can inquire about past criminal records also requires the employer to perform an individualized assessment, and post and distribute notices.   The required notices are attached to this compliance update. 

Other important sections from this ordinance that impact employers:

SEC. 4905. NOTICE AND POSTING REQUIREMENTS FOR EMPLOYERS

• The Employer shall state in all solicitations or advertisements for employees that are reasonably likely to reach persons who are reasonably likely to seek employment in the City, that the Employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of this Article.
• The OLSE shall, by the operative date of this Article, publish and make available to Employers, in English, Spanish, Chinese, and all languages spoken by more than 5% of the San Francisco workforce, a notice suitable for posting by Employers in the workplace informing applicants and employees of their rights under this Article. The OLSE shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco workforce. At a minimum the notice described above shall contain the following information:

1. A description of the restrictions and requirements that Section 4904 imposes on Employers when inquiring about Conviction History in connection with an employment or hiring decision;
2. The definition of Evidence of Rehabilitation or Other Mitigating Factors provided in Section 4903, and under what circumstances the applicant or employee has a right to provide such evidence;
3. The OLSE telephone number and email address that the applicant or employee may use to make a report if he or she believes the Employer has violated any of the provisions of Article 49.

• Employers shall post the notice described in subsection (b) in a conspicuous place at every workplace, job site, or other location under the Employer’s control frequently visited by their employees or applicants, and shall send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding. The notice shall be posted in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace, job site, or other location at which it is posted.

SEC. 4906. EMPLOYER QUESTIONNAIRE

• The OLSE shall, by the operative date of this Article, publish and make available to Employers, a questionnaire to be completed by the Employer prior to taking any final Adverse Action against an applicant or employee on the basis of his or her Conviction History, that contains at a minimum the following information:

1. A statement that the notice is being provided in order to comply with Article 49 of the San Francisco Police Code.
2. Questions that shall prompt the Employer to provide the following information in yes/no or multiple choice format:
• Whether, and if so when, the applicant or employee was asked to voluntarily disclose information about his or her Conviction History;
• Whether, and if so when, a Background Check Report was obtained by the Employer;
• If the applicant or employee requested a copy of the Background Check Report and any items of Conviction History appeared on the report, whether the applicant or employee submitted any evidence of inaccuracy or Evidence of Rehabilitation or Other Mitigating Factors;
• Whether the Employer gave consideration to any information by the applicant or employee of the report’s inaccuracy or to any Evidence of Rehabilitation or Other Mitigating Factors;
• Whether the Employer gave any consideration to the amount of time elapsed since the conviction or release from incarceration or conduct that is the subject of an Unresolved Arrest;
• Whether the employment position at issue would give the applicant or employee the opportunity to commit the same or similar offenses;
• Whether the circumstances leading to the conduct for which the applicant or employee was convicted or that is the subject of an Unresolved Arrest would recur in the employment position at issue; and
• The OLSE telephone number and email address that the applicant or employee may use to make a report if he or she believes the Employer has violated any of the provisions of Article 49.

• Upon taking any Adverse Action an Employer shall deliver to the applicant or employee a copy of the completed questionnaire.