As of this week, San Francisco contractors, employers and affordable housing providers have strict limits as to how they can use information about an applicant’s criminal history. This Ban the Box legislation is different than most we have seen because it includes people applying not just for jobs… but for public housing.
On February 17, Mayor Edwin Lee (D) signed the Fair Chance Ordinance. The ordinance allows city employers and affordable housing landlords to neither ask questions about criminal records, nor do a background check, before applicants prove they meet the initial qualifications to do the job or rent the housing unit.
After the first live interview, the ordinance allows a background check to be completed. But, even then, a criminal record cannot automatically kick someone out of the running. The ordinance says decision makers can only use conviction information if it bears direct relationship to the housing or job. The employer or housing provider must decide if the position or rental unit gives the candidate the opportunity to commit a similar offense.
The ordinance only applies to employers with 20 or more employees doing work within the city of San Francisco. It excludes contracts where less than $5,000 is earned in a fiscal year. Property rentals for less than 30 days are also exempt. Arrests that do not result in a conviction cannot be considered at all.
According to the ordinance, almost one in four adults in California has an arrest or a conviction record. The authors of the ordinance point to the proliferation of companies offering criminal background checks as one of the reasons why it is so difficult for some to get a fresh start after committing a crime.
San Francisco is just the latest municipality to institute a ban the box law. More than 50 cities have similar laws on the books. Ten states have adopted legislation, some of which apply the rules to private employers as well as government agencies and their contractors. Check out this link to see if your city or state has a Ban the Box law on the books.
According to EBI Chief Knowledge Officer Robert Capwell, Ban the Box laws are becoming the norm, but since they differ from place to place, they can cause some complicated issues for employers that have a multi-state footprint. Capwell says such companies will have to process individual applications based on the location. They will have to remove any language referring to past criminal history from those applications being used in cities or states with Ban the Box legislation that specifically applies to them.
Regardless of whether your region has banned the box or not, the EEOC recommends employers always keep the three-factor test from Green v. Missouri Pacific Railroad Company in their minds as they evaluate criminal history. The Green factors are:
- The nature or gravity of the offense
- The length of time since the conviction or completion of the sentence
- The nature of the job in question
Be sure to check back regularly for additional Ban the Box news.
Employment Background Investigations is a technology driven leader in domestic and global pre-employment background checks, drug testing, occupational healthcare and I-9 compliance. We specialize in development, implementation and management of customized employment screening programs for large and multi-national clients. We are dedicated to information security. EBI is the only background screening firm to hold an ISO27001:2005 certification for information security and to be accredited by the Background Screening Credentialing Council (BSCC) created by the NAPBS.
All content provided by EBI is published for the convenience of its readers and should never be deemed as legal guidance or advice. Always consult your legal counsel for specific advice on state laws and industry regulations.
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