Even if You Didn’t Ask “Did You Break the Law?” You’ve Probably Broken the Law-
By William Bogdan, Lynch, Gilardi & Grummer, San Francisco
The response of businesses north of the Golden Gate and east of the Bay Bridge to any new San Francisco ordinance is often “Thank goodness we don’t have to deal with that!” However, the new Fair Chance Ordinance which restricts the timing of any inquiry into an applicant’s criminal history casts a net wide enough to catch almost any employer. For those of you still in denial, consider the following:
Denial Myth #1: I don’t have a San Francisco office.
Doesn’t matter. Any company with 20 employees anywhere— Merced, Mongolia or Mars—with one employee doing at least 8 hours of work per week in San Francisco is covered by the Ordinance. It doesn’t matter whether that one employee performing work in San Francisco is a temporary, part-time, or seasonal employee. Even a telecommuting employee conducting business from a San Francisco residence triggers application of the Ordinance.
You don’t have an employee meeting the 8 hour test? Doesn’t matter - - if you have a contract with the City and County of San Francisco. Every contractor or vendor with a contract or lease with a San Francisco public entity must comply with the Ordinance regardless of the size of the company. Contractors and suppliers having contracts with the San Francisco Airport, this means you.
Denial Myth #2: I don’t ask about crimes and I don’t condition employment on a background check.
Doesn’t matter. If you advertise a position that involves working 8 hours a week in San Francisco, you must include language in your posting announcing that you will consider qualified applicants in a manner consistent with the requirements of the Ordinance.
Denial Myth #3: I get my field labor through the union hall.
Doesn’t matter. It is your burden to put the union on notice that you are bound to hire personnel consistent with the terms of the Ordinance.
Using a temporary staffing agency or third party recruiting firm does not save you. You are still ultimately responsible to ensure compliance with the Ordinance, and you are just liable for violations as if you solicited the position directly.
Busted? Here’s the Quick Fix
The Ordinance is already in effect, so here’s what you need to do:
1. For any written or electronic job posting for a position to be performed at least 8 hours in San Francisco per week, you must add language indicating that you will consider qualified applicants with criminal histories. The City of San Francisco recommends the following language: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment qualified applicants with arrest and conviction records.” If your website lists a San Francisco job posting without similar language, you are already in violation.
2. Send the Fair Chance Ordinance Notice to every labor union with which you have a collective bargaining agreement or other agreement of understanding that provides labor for San Francisco positions. A copy of the notice can be found here: http://sfgsa.org/modules/showdocument.aspx?documentid=11600 . The union will be inundated with notices, so don’t expect the Local to keep track of your compliance. Put your company name and the name of the Local on the notice, date it, and keep a copy of each form you send for your files. To be safe, repeat the process for each San Francisco project.
3. Delete from job application for San Francisco positions any question about convictions or arrests. This means if you have multiple offices, you may have to create a specific application for the San Francisco office.
4. Post the Fair Chance Ordinance Notice in the break room of your San Francisco locations.
So I Have to Hire Al Capone?
No. You are still entitled to hire the most qualified and appropriate candidate. You can exclude people with convictions having a direct and specific negative bearing on the applicant’s ability to do the job. However, you cannot ask about convictions or arrests until after a live interview or until you have made a conditional job offer.
How you go about asking, and what you do with the results, can be summarized as follows:
1. If you are going to ask about convictions, give the applicant a copy of the Fair Chance Ordinance Notice, preferably at the start of the hiring process but don’t ask about convictions until the end of the live interview or until after making a conditional offer.
2. If you are going to run a background check, notify the applicant that a report will be run, but make sure you comply with all state and federal requirements surrounding background checks as well.
3. If you are making an employment decision based on a conviction, you must consider the nature and effect of the crime, including the opportunity to commit a similar offense in the position, the amount of time since the conviction, evidence of rehabilitation, etc.
4. If you reject someone because of a conviction, give the applicant a copy of the background check, allow the applicant 7 days to provide evidence of inaccuracies, rehabilitation or mitigating factors, and reconsider your position based on the new evidence. You must hold the position open during the reconsideration period.
The nuances of what you can or cannot ask about go beyond the confines of this article, and present a good opportunity for you to have a chat with your attorney. Lawyers get lonely around this time of the year.
***
Bill Bogdan is a partner with Lynch, Gilardi & Grummer in San Francisco specializing in Construction and Employment Law. He is not yet licensed in Mongolia or on Mars.