As widely reported earlier this year, California passed a state-wide prohibition on asking applicants about their criminal history before a conditional offer of employment is made. For those unfamiliar, an excellent summary can be found here.
Not to be outdone, this month San Francisco amended its “ban-the-box” law or Fair Chance Ordinance (FCO). The new law passed on April 13, 2018 and takes effect on October 1, 2018. The FCO already restricted several types of convictions that employers are never allowed to inquire into. This is an important distinction from the state-wide law, which does allow inquiry into conviction history after a conditional offer of employment.
Specifically, employers in San Francisco, may never ask about “(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section as an Unresolved Arrest; (2) Participation in or completion of a diversion or a deferral of judgment program; (3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code sections 1203.4, 1203.4a, or 1203.41; (4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system; or (5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing; or (6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction.”
Now, starting on October 1, 2018, employers in San Francisco cannot ask about “[a] Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing. Examples of statutes that have decriminalized particular conduct include but are not limited to California Health and Safety Code Sections 11362.1 and 11362.2.” In other words, employers in San Francisco may will not be permitted to ask about a conviction for something that used to be a crime, but no longer is.
Why is this important for employers in San Francisco and beyond? First, beyond the obvious requirements for San Francisco employers, it is a good reminder for employers throughout the state that many local jurisdictions impose local ordinances and regulations on employers that can be more stringent than state law. Second, the Health and Safety Code section referenced are California's new cannabis laws. Similar changes to state-wide employment laws are likely, especially with regard to medical accommodation laws. Employers should track these developments and ensure that their workplace policies and practices comply with federal, state, and local requirements.
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