San Francisco’s new “Ban the Box” ordinance takes effect on August 13, 2014. On that date, employers with 20 or more employees (regardless of location) will be prohibited from asking applicants for jobs in SF questions about:

  • An arrest that didn’t lead to conviction (they can ask about unresolved arrests, i.e. those that are the subject of an active pending criminal investigation or trial);
  • Participation in diversion or deferral of judgment programs;
  • Convictions that have been “judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative;”
  • Juvenile convictions;
  • Convictions that are more than 7 years old; or
  • Convictions for offenses that are not felonies or misdemeanors, e.g. infractions.

The ordinance prohibits any inquiry about criminal history at the beginning of the hiring process, including on job applications. Employers can only ask for this information after a “live interview” (which can be by phone) or after a conditional job offer’s been made. The Office of Labor Standards Enforcement will also be creating a notice that employers must provide the applicant before any such inquiry and a notice employers must post.

If the employer does obtain information about a conviction or unresolved arrest, it can only use the information if it’s directly related to the job and it considers mitigating factors. There are also specified procedures for giving the applicant notice of a proposed adverse action and letting him or her provide information in response.

During the first year the ordinance is in effect, the OLSE can only issue warnings and notices to correct. After that, a first violation will result in a warning, there will be  a $50 penalty for a second violation, and a $100 penalty for each violation thereafter. Only the OLSE can bring a claim. There is no private right of action.

For those of you keeping score at home, businesses choosing to locate in SF now face the highest minimum wage, a paid sick leave ordinance, a Family Friendly Workplace Ordinance, and requirements for commuter benefits and per-employee spending on health care. Is the goal to drive businesses out completely?