Hunton Employment & Labor Perspectives

On April 3, 2018, San Francisco amended its Fair Chance Ordinance, the city and county’s so-called “ban-the-box” legislation that limits how private employers can use an applicant’s criminal history in employment decisions.  The amendments, which take effect on October 1, 2018, expand the scope and penalties of the San Francisco ordinance and add to the growing framework of ban-the-box legislation across California.  The complete text of the amendment can be found here.

The amended San Francisco ordinance will apply to more employers and will provide stiffer penalties for violations, including for an employer’s first violation, which previously had no associated penalties.  The amended ordinance also allows individual applicants and employees to sue and recover these larger penalties in civil actions, a change that may result in a greater number of enforcement actions against San Francisco employers.  These and other significant changes to the ordinance are summarized in the following chart:

To illustrate the impact of these amendments, consider a covered employer’s second violation of the ordinance.  Under the pre-amendment version of the ordinance, only the City Attorney could bring a civil action for the violation, the penalty for a second violation was limited to a maximum of $50, and the penalty was paid to the City of San Francisco.  Under the amended version of the ordinance, either the City Attorney or the impacted employee or applicant could bring a civil action for the violation, the penalty for a second violation could be as much as $1,000, and the penalty would be paid to the employee or applicant whose rights were violated.

California’s Ban-the-Box Framework Is Likely to Grow Over the Coming Years

San Francisco and Los Angeles are currently the only California cities with so-called ban-the-box ordinances that apply to all private employers with a minimum number of employees.  The California cities of Compton and Richmond also have their own ban-the-box ordinances, but those ordinances currently apply only to employers doing business with those cities.

The San Francisco and Los Angeles ordinances share similarities with California’s statewide ban-the-box law, which also applies to all private employers with a minimum number of employees.  The following chart shows a few of the similarities and differences between the San Francisco, Los Angeles, and California legislation:

California’s ban-the-box law does not prevent other California cities and counties from enacting their own criminal background check legislation, and California employers should expect to see more local governments enacting similar measures over the next several years.