California law also “bans the box” and imposes requirements on how employers obtain and use criminal history (the State Law). The State Law applies to employers with five or more employees. You are required to comply with both the FCO and State Law. For more information about the State Law, see Restrictions on Obtaining Criminal History.

The FCO applies not only to regular employees, but also to part-time workers, contract workers, contingent workers and workers from a temp agency.2 The FCO, as explained below, prohibits any type of criminal history inquiry on a job application.

Employers may want to use one of the following job applications:

• Employment Application - Long Form
• Employment Application - Long Form - Spanish
• Employment Application - Short Form
• Employment Application - Short Form - Spanish

Neither the FCO nor the State Law limit an employer’s ability to choose the most qualified and appropriate candidate among the applicants for a particular job.

The FCO is enforced by the San Francisco Office of Labor Standards Enforcement (OLSE). More information on the ordinance can be found by visiting the FCO website. You can also contact the San Francisco OLSE by phone at (415) 554-5192, or email fco@sfgov.org

Employers Covered Under the Fair Chance Ordinance

The FCO applies to employers who:

• Are located or doing business in San Francisco; and
• Have five or more employees, regardless of whether those employees are all located in San Francisco.3

The five-person threshold includes management and supervisorial employees. Job placement, referral agencies and other employment agencies are also considered employers.

Employment Covered Under the Fair Chance Ordinance

The ordinance’s requirements and restrictions, however, apply only to employees and applicants whose duties, or prospective duties, are performed at a physical location in whole, or “in substantial part,” in San Francisco. The FCO states that employment must be “at least” eight hours per week in San Francisco to be covered.4 The OLSE has stated that it interprets “in substantial part” to mean an average of eight hours of work performed per week in San Francisco and that employers may look to previous years to determine if a position will involve an average of eight hours of work a week in San Francisco.

Off-Limit Inquiries: Applicants, Potential Applicants and Employees

Under the FCO, you may never inquire about, require disclosure of or consider the following information:5

• Arrests not leading to a conviction, except “unresolved arrests” still undergoing criminal investigation or trial;
• Participation in or completion of a diversion or deferral of judgment program;
• Convictions which have been judicially dismissed, expunged or made inoperative;
• Convictions or determinations made in the juvenile justice system, or any matter considered in or processed through the juvenile justice system;
• Information pertaining to any criminal offense other than a felony or misdemeanor, such as an infraction. Exceptions for driving infractions exist where driving is more than a de minimus part of the job;
• A conviction that arises from conduct that has been decriminalized since the date of the conviction (which is the date of sentencing), including but not limited to violations of California Health and Safety Code sections 11362.1 and 11362.2; and
• Out of state convictions or unresolved arrests for conduct that is lawful in California related to:
  • Abortion-related healthcare (defined as seeking, performing, providing, receiving, or facilitating the services by or of a physician or other medical professional to terminate a pregnancy).
  • Drag performances of a public, artistic nature characterized by exaggerated displays of femininity or masculinity, which may be demonstrated by wearing clothing associated with a gender different than the person’s assigned gender at birth.
  • Gender-affirming care (defined as seeking, performing, providing, receiving, or facilitating medical care, support, or advocacy for the purpose of addressing disparities between any person’s gender identity and their physiology or perceived gender identity, including but not limited to hormone replacement therapy, surgical procedures, and changes to a person’s name or gender marker. This also includes a conviction for use of a gendered facility that corresponds with one’s gender identity or playing sports on a team that corresponds with one’s gender identity).
  • Spontaneous abortion (This includes a miscarriage before 20 weeks of pregnancy, or a stillbirth that occurs after 20 weeks of pregnancy).6

• These matters are considered “off-limits” and cannot be used for any reason at any stage of the hiring or employment process.

San Francisco’s FCO has more “off limits inquiries” than the State Law. Where the FCO applies, employers must follow the stricter standards in the San Francisco FCO.

What does “inquire” mean? Under the FCO, “inquire” means any direct or indirect employer conduct intended to gather information from or about an applicant, candidate, potential applicant or candidate, or employee using any mode of communication. This includes, but is not limited to, application forms, background check reports and interviews.7

An unresolved arrest is an arrest that is undergoing an active pending investigation or trial and has not yet been resolved.8

• Employers must still follow state and federal law regarding criminal background checks. State and federal law mandate criminal background checks in certain industries. See, Obtaining Criminal History. If there is a conflict, state and federal requirements supersede the FCO’s requirements. If you have questions about the applicability of federal or state law, consult legal counsel.

Timing of Non-Prohibited Inquiries

Even when you can inquire about an applicant’s, potential applicant’s or employee’s criminal history (non-prohibited inquiries), the FCO regulates the timing of the inquiry and the required process:9

• You cannot ask about criminal history on a job application or require disclosure of criminal history information on the job application.
  • The FCO allows employers to ask for an applicant’s consent for a criminal background check on the employment application, as long as the application clearly informs the applicant that a criminal background check won’t occur until permitted by the FCO. State Law does not permit asking for consent on the application. You should not implement or continue such a practice.
• Under the FCO, you cannot inquire about criminal history, including conducting or obtaining from a third party, background check, until after you have extended a conditional offer of employment.
• Before making any permissible criminal history inquiry under the FCO, you must provide the applicant/employee with a copy of the OLSE's official FCO notice. There is also a posting requirement regarding this notice. For more information, see “Posting, Notice and Recordkeeping Requirements” on this page.
• Before obtaining a copy of any background check report, you must also comply with all federal and state notice requirements — such as those under the federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA). For more information, see the HR Library's Obtaining Investigative Consumer Reports page.

• If you decide to run a background check at the permitted time, enclose the San Francisco FCO notice along with all other necessary disclosure and consent forms required by law.

• Remember that you cannot inquire about criminal history information that is “off-limits.”

Limits on Use of Properly Obtained Criminal History Information

Assuming all of the steps for obtaining permissible criminal history information have been followed, the FCO still places restrictions on when you can make an employment decision based on an applicant/employee’s conviction history.

If an applicant discloses criminal history, you are restricted under the FCO on how you can consider the information. The FCO requires employers to conduct an individualized assessment of the information and consider:

• Only “directly related” convictions;
• The time that has elapsed since the conviction or unresolved arrest;
• Any evidence of inaccuracy;
• Evidence of rehabilitation; and
• Other mitigating factors.10

Employers under the FCO need to determine if the criminal history is directly related to the individual’s ability to perform the job. A "directly related conviction" is defined as a conviction or unresolved arrest that has a "direct and specific negative bearing" on the individual's ability to perform the duties or responsibilities of the job. In determining whether a conviction or unresolved arrest is directly related to the employment position, the FCO requires you to consider:

• Whether the job at issue offers the opportunity to commit the same or similar offense; and
• Whether the circumstances that led to the prior conduct resulting in conviction or unresolved arrest will recur in the position.

Evidence of rehabilitation may include (but is not limited to):

• Satisfactory compliance with the terms and conditions of parole or probation (inability to pay fines/restitution due to indigence shall not be considered noncompliance);
• Employer recommendations, especially post-conviction employment;
• Educational attainment or vocational/professional training since the conviction, including while incarcerated;
• Completion of or active participation in rehabilitative treatment;
• Letters of recommendation from community organizations, counselors, case workers, teachers, community leaders, parole or probation officers;
• The age of the person at the time of conviction

Mitigating factors may include coercive conditions, physical or emotional abuse or untreated substance abuse or mental illness that contributed to the conviction.11

If, after conducting this assessment, you decide not to hire an applicant based on criminal history (or take some other adverse action such as discharge or failure to promote), you must take the following steps prior to taking any adverse action:

• Provide the applicant/employee with a copy of the background check report, if any;
• Notify the applicant/employee of the proposed adverse action; and
• Notify the applicant/employee of the specific items forming the basis of the proposed adverse action.

You also need to comply with FCRA and ICRAA notice requirements. For more information, see the HR Library's Obtaining Investigative Consumer Reports page.

The applicant/employee has seven days to provide you with notice that the conviction history you relied on is inaccurate or with evidence of rehabilitation or mitigating factors. This information can be provided orally or in writing. You must provide confirmation of receipt to the applicant/employee within 14 days.12

• State Law requires you to give the applicant 5 business days to submit information. Employers subject to the FCO should give, at minimum, the greater of seven calendar days or five business days.
• If the applicant notifies you, within the initial time period, that the applicant disputes the accuracy of the conviction and is taking steps to provide supporting information, the State Law requires you to give the applicant an additional five business days to submit this information.Employers must follow the stricter State Law standard and provide the additional five business days in such situations.

At this point, you must delay the adverse action for a “reasonable period” to reconsider the adverse action. Hold the position open during this process. The OLSE has not specifically defined what constitutes a “reasonable period,” instead noting that it will depend upon the specific circumstances. “In general, a reconsideration period will likely be reasonable if it gives the employer an opportunity to conduct a new individualized assessment that considers all additional information. If the applicant/employee makes a reasonable factual showing that the proposed adverse action is based solely on a conviction that is not a directly related conviction, you are required to withdraw the adverse action.13 “If you ultimately decide to take adverse action based on the criminal history information, the FCO requires you to notify the applicant/employee of any final adverse action.14

State Law requires your final notice to the applicant include any existing procedure you have for challenging the decision and the applicant’s right to file a complaint with the Department of Fair Employment and Housing. You must follow the stricter state standard and include this information in your final notice.

Posting, Notice and Recordkeeping Requirements

The FCO contains several notice, posting and recordkeeping requirements.

Under the FCO, all job postings that are “reasonably likely” to reach a person seeking employment in San Francisco must state that the employer will consider qualified candidates with criminal histories in a manner consistent with the ordinance. Employers may not advertise that any person with an arrest or conviction record will not be considered for employment or may not apply for employment. This includes online postings.15

You must post the official FCO notice informing applicants and employees of their rights under the FCO. The notice must be posted in a conspicuous place at every workplace, job site or other location in San Francisco that is under your control and frequently visited by employees or applicants.

The notice must be posted in English, Spanish, Chinese and any language spoken by at least 5 percent of the employees at the workplace.

• San Francisco specific posters, containing the notice in all four languages, are available for purchase on the CalChamber Store.

In addition to posting the notice where applicants and employees can see it, the FCO requires you to:

• Send a copy of the notice to each labor union representing its San Francisco employees; and
• Provide the notice before conducting any permissible criminal history inquiry. See “Timing of Non-Prohibited Inquiries” on this page.16

You must retain records of employment, application forms and other “pertinent data and records” for a period of three years.17

Covered employers must also provide annual reports to the San Francisco Office of Labor Standards Enforcement (OSLE) on a city-provided Employer Annual Reporting Form. The annual reporting deadline is typically in late April/early May. More information is available on the OSLE website.

Retaliation: Protections for Applicants and Employees

You cannot retaliate against applicants/employees for exercising rights under the FCO, such as complaining about violations, participating in investigations, opposing unlawful practices, or informing others of their rights under the FCO. Any adverse action taken against an individual within 90 days of exercising one of these rights creates an assumption of retaliation, which you then have the burden to rebut.18

Enforcement

The OLSE enforces the FCO. Violations are not based on an employer’s decision that a conviction history is directly related to the job, other than for an abortion-related healthcare conviction, a drag conviction, a gender-affirming care conviction, or a spontaneous abortion-related conviction. A violation also occurs if the OLSE determines that an employer issued an adverse action without conducting an individualized assessment. For a first violation, the OLSE may impose an administrative penalty of up to $1,000 for each employee or applicant whose rights were violated. For second violations, the OLSE may impose an administrative penalty of up to $2,000 for each employee or applicant whose rights were violated. This penalty is payable to the employee or applicant whose rights were violated. The penalty may increase to up to $4,000 per employee or applicant for further violations

The FCO authorizes any employee or applicant whose rights have been violated to bring a civil action, as well as the city attorney. There are a number of procedural steps an affected employee or applicant must follow before filing suit.

Remedies may include reinstatement, back pay, the payment of benefits or pay unlawfully withheld, an additional sum of $1,000 to each employee applicant or other person whose rights were violated for each day of the violation, and attorney’s fees and costs.19

1. San Francisco Police Code art. 49

2. San Francisco Police Code sec. 4903

3. San Francisco Police Code sec. 4903

4. San Francisco Police Code sec. 4903 (definition of “employment”)

5. San Francisco Police Code sec. 4904(a)

6. San Francisco Police Code sec, 4903(n)

7. San Francisco Police Code sec. 4903

8. San Francisco Police Code sec. 4903

9. San Francisco Police Code sec. 4904(b)-(f)

10. San Francisco Police Code sec. 4904(f)

11. San Francisco Police Code sec. 4903

12. San Francisco Police Code sec. 4904(h)

13. San Francisco Police Code sec 4904(h)

14. San Francisco Police Code sec. 4904(g)–(i)

15. San Francisco Police Code secs. 4904(j), 4905(a)

16. San Francisco Police Code sec. 4905(c)

17. San Francisco Police Code sec. 4910

18. San Francisco Police Code sec. 4908

19. San Francisco Police Code sec. 4909