In 2014, San Francisco passed their Fair Chance Ordinance (“Ordinance”). On April 3, 2018 the City of San Francisco Board of Supervisors passed an amendment to the Ordinance to better align with the requirements of California’s statewide Fair Chance Act (AB 1008) that went into effect January 2018. Under San Francisco’s amended Ordinance, employers located or doing business in the City need to be more cognizant about inquiries into an applicant’s or employee’s criminal history. Although we recommend you review all existing and amended provisions with your counsel, please find a high-level summary of the amended provisions to the Ordinance below.

Amendments to San Francisco’s Fair Chance Ordinance

The Basics

• Location: San Francisco, CA
• Legislation: File No. 171170
• Type: Fair Chance Ordinance
• Effective Date: May 13, 2018
• Operative Date: October 1, 2018

Key Takeaways

• Reduced the number of employees from twenty to five for an employer to be covered by the Fair Chance Ordinance
• Prohibits employers from inquiring about, requiring disclosure of, or basing employment decisions on a person’s conviction history until after a conditional offer of employment has been made
• Prohibits employers from inquiring about, requiring disclosure of, or basing employment decisions on convictions for decriminalized behavior so they will need to evaluate any potentially disqualifying convictions
• Penalties can be imposed for the first violation of the Ordinance and increased penalties for subsequent violations
• Gives victims a private right of action for violations of the Ordinance; and
• Amendment also applies to City’s Contractor’s and Subcontractors

Which employers are affected?

The new amendment has reduced the number of employees needed for an impacted employer to be covered under the provisions of the Ordinance from twenty to five.

What is prohibited?

Convictions for Decriminalized Behavior

Although previously permitted under the Ordinance, employers are now prohibited from inquiring about, requiring disclosure of, or basing an employment decision on convictions that have since been decriminalized since the date of the Conviction, including, but not limited to, convictions that fall under California Health and Safety Code Sections 11362.1 and 11362.2 (related to the non-commercial use and personal cultivation of cannabis). Impacted employers will need to be cognizant of this requirement when evaluating their background checks.

As a reminder, California employers have been restricted from considering certain criminal history prior to this amendment, including but not limited to:

• Arrests that do not result in a conviction;
• Participation in, or referral to, a pretrial or post-trial diversion program;
• Juvenile records;
• Judicially dismissed or sealed records in accordance of the law; and
• Certain non-felony marijuana convictions that are more than two years old.

San Francisco expands on the above and prohibits covered employers from considering (i) information pertaining to an offense other than a felony or misdemeanor, such as an infraction or (ii) convictions that are more than 7 years old, based on the date of sentencing.

Conditional Offers of Employment Only

Under the amended Ordinance, employers are prohibited from inquiring about, requiring disclosure of, or basing an employment decision on a person’s conviction history after a live interview. Consideration of an applicant’s conviction history is permissible only after the employer has made a conditional offer of employment.

What other requirements impact employers?

Increased Penalties:

Under the amended Ordinance employers can be assessed a $500 penalty for a first violation that occurs on or after the effective date of the Ordinance for each employee or applicant as to whom the violation occurred. Subsequently, a second violation can yield a $1000 penalty and $2000 for any additional violations. If there are multiple applicants or employees affected by the same procedural violation at the same time then the violation is treated has one violation for each impacted person.

Private Right of Action:

Where it used to be that the City Attorney could only sue for violations of the Ordinance the new amendment allows for individual applicants and employees the right to sue if his or her rights have been violated. The penalties will now be paid to the person(s) impacted by the violation and not the City.

Recommendations

We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing law. For additional details please refer to the final legislation regarding the amended Ordinance. Seyfarth Shaw LLP has also provided an overview you may read here.

Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.

Pre-Adverse Action Notice Reason Specified Non-California

Pre-Adverse Action Notice (PA)

Subject Notification - New York Notice (NY SBJ)

Ban‐The‐Box Laws Have Expanded in Washington State 

Washington State and the City of Spokane have joined a growing number of jurisdictions that have passed so‐called "ban‐the‐box" laws.

Both laws limit when employers can inquire into and consider the criminal history of a job applicant and will go into effect in June 2018.

Washington State Bans the Box

Who does this affect?

The law applies to employers including public agencies, private individuals, businesses and corporations, contractors, training and apprenticeship programs, and temporary staffing, job placement, referral, and employment agencies.

What is prohibited in the law?

Employers may not:

• Advertise employment openings in a way that excludes people with criminal records from applying;
• Obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position, meaning the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record; or
• Implement any policy or practice that excludes individuals with a criminal record, including failure to disclose such record, from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

Washington State and the City of Spokane have joined a growing number of jurisdictions that have passed so‐called "ban‐the‐box" laws. Both laws limit when employers can inquire into and consider the criminal history of a job applicant and will go into effect in June 2018.

Washington State Bans the Box

The Basics

• Location: Washington State
• Legislation: HB1298
• Type: Ban the Box
• Effective: June 6th, 2018

Key Takeaways

• May not exclude people with criminal records in advertisements.
• Prohibits inquiries into an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified (as defined).
• Penalties may be enforced up to $1,000 per violation.

Who does this effect?

The law applies to employers including public agencies, private individuals, businesses and corporations, contractors, training and apprenticeship programs, and temporary staffing, job placement, referral, and employment agencies.

What is prohibited in the law?

Employers may not:

• Advertise employment openings in a way that excludes people with criminal records from applying;
• Obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position, meaning the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record; or
• Implement any policy or practice that excludes individuals with a criminal record, including failure to disclose such record, from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

Are there any exceptions?

The law does not apply to:

• Employers hiring a person who will or may have unsupervised access to children, or a vulnerable adult or person (as defined);
• Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant's or employee's criminal record for employment purposes;
• Employment by a general or limited authority Washington law enforcement agency, or a criminal justice agency (as defined); ü An employer seeking a nonemployee volunteer; or
• Any entity required to comply with the rules or regulations of a self‐regulatory organization (as defined).

What are the repercussions for a violation of the law?

The Washington Attorney General’s office will utilize a stepped enforcement approach using education, warnings, and legal, including administrative, action. Penalties may be enforced up to $1,000 per violation.

How does the state law interact with local government laws?

The state law does not interfere with local government laws that provide additional protections for such applicants or employees in the future. Local government laws that provide lesser protections to job applicants with criminal records than the state law conflict and may not be enforced. The state law also does not discourage or prohibit employers from adopting employment policies that are more protective of employees and job applicants than the state's requirements.

The City of Spokane, WA Bans the Box

The Basics

• Location: Spokane, WA
• Legislation: Ordinance No. C35564
• Type: Ban the Box
• Effective: June 14th, 2018

Key Takeaways

• • Cannot advertise job openings in a way that excludes people with arrest or conviction records.
  • Prohibits any inquiries about an applicant’s arrest or conviction until after an interview or conditional offer of employment has been made.
  • Cannot disqualify an applicant solely because of a prior arrest/conviction record or for failure to disclose a criminal record prior to determining the applicant is qualified for the position.

Who does this effect?

The law applies to all private employers within the Spokane city limits. Separate requirements are also outlined under the law which apply only to the City of Spokane.

What is prohibited in the law?

Employers may not:

• • • Advertise job openings in a way that excludes people with arrest or conviction records from applying; however, employers may advertise the requirement for a criminal history inquiry and/or background check during or after the interview process as long as it does not state that an arrest or conviction record will automatically preclude the applicant from consideration for employment;
    • Obtain information about an applicant's arrest or conviction record until after the applicant has participated in an interview or received a conditional offer of employment;
    • Use, distribute, or disseminate an individual’s arrest or conviction record except as required by law;
    • Disqualify an individual solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job or disqualification is otherwise allowed by this law; or
    • Reject or disqualify an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position, meaning the applicant meets certain criteria for the position as set out in the job advertisement or description without considering the existence or absence of a conviction or arrest record.

Are there any exceptions?

The ordinance does not apply to:

• • • Any employer hiring an employee who will have unsupervised access to children under the age of eighteen, a vulnerable adult, or a vulnerable person (as defined under state law);
    • Employers that are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant’s arrest or conviction record for employment purposes;
    • Any General Authority Washington law enforcement agency (as defined under state law); or
    • Employers conducting criminal background checks that are specifically permitted or required under state or federal law.

What does this mean for an employer?

• • • The ordinance is not intended to prohibit an employer from inquiring into or obtaining information about an applicant’s criminal conviction or arrest record or background, and from considering the information regarding such information, after the conclusion of a job interview, or after a conditional offer of employment has been made, and from using such information in any pre‐hire decision.
    • Nothing in the ordinance prohibits an employer from declining to hire an applicant with a criminal record or from terminating the employment of an employee with a criminal record.

What are the repercussions for a violation of the law?

A violation of the ordinance is a class 1 civil infraction. Any subsequent violation advances the infraction by one class and may increase the fines. Citations or fines for violations of the ordinance will not be imposed until after January 1, 2019.

Recommendations

recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.  Seyfarth Shaw has also provided overviews you may read for Washington State.

Contact Accurate Background

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page. Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.