background checks

Now We’ve Got Your Attention: Recent Amendments to SF Fair Chance Ordinance Give Job Applicants Right to Sue and Send Penalties Soaring

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San Francisco recently added significant teeth to its “Fair Chance” ordinance, which is designed to give applicants who have criminal histories a chance to get their foot in the door without being automatically disqualified.

This is the next step in the “ban the box” movement, for which several cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background. The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions. Proponents of “ban the box” laws argue they will help remove unfair employment barriers to job applicants with criminal histories.

In California, San Francisco and Los Angeles have instituted “Fair Chance” ordinances that require employers to state on their job postings that an arrest or conviction will not automatically disqualify a qualified application from consideration from employment. Recent amendments to the San Francisco Fair Chance Ordinance went into effect on October 1, 2018. These amendments:

  • Expand the scope of the law to cover any employer with 5 or more employees. Previously, the law covered employers with 20 or more employees.
  • Prohibit employers from inquiring about a person’s criminal history until after a conditional offer of employment has been made.
  • Prohibit employers from considering any convictions for decriminalized behavior (e.g., marijuana related convictions). Previously, the law had allowed such inquiries for convictions that were seven years old or less.
  • Increase penalties for non-compliance from a per-violation maximum of $100 to $2,000.
  • Direct that penalties must be paid directly to affected employees. Penalties were previously paid to the City.
  • Creates a new private right of action for any employee or applicant whose rights have been violated. Previously only the City Attorney could sue to enforce the law.
  • Requires that covered employers display a new poster in the workplaces as of October 1, 2018.

In addition to fair chance ordinances like San Francisco’s, California employers must also be mindful of other recent legislation that will have an impact on the hiring process, including state-wide legislation enacted in July 2018 that prohibits employers from inquiring into the salary history of their applicants. More on that here.

As always, employers are well advised to reach out to Orrick counsel for assistance navigating this complex area of law.

NYCCHR’s Enforcement Guidance on NYC Credit Check Law: Answers and New Questions

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On September 2, 2015, the New York City Commission on Human Rights (NYCCHR or Commission) issued Enforcement Guidance (Guidance) on the New York City Stop Credit Discrimination in Employment Act (SCDEA), which took effect on September 3, 2015.  As detailed in our earlier blog post, the NYCCHR has been charged with enforcing the SCDEA, which amends the New York City Human Rights Law (NYCHRL) to prohibit employers from requesting or using consumer credit history in hiring and other employment decisions, except in limited circumstances.

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New York City “Bans the Box”—Inquiries Into Applicants’ Criminal Histories Now Significantly Restricted

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On June 10, 2015, the New York City Council passed the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process.  With the passage of the Act, which is expected to be signed by Mayor Bill de Blasio, New York City joins a large group of other states and municipalities in passing so-called “ban the box” legislation, which refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application.  The ban the box legislation stems from the use of criminal history as an employment screening tool and from concerns that criminal history is often not a reliable indicator of job performance, and moreover, may adversely affect minority groups.

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N.D. Cal. Judge Puts a Check on Plaintiff’s Novel LinkedIn Background Check Theory Under FCRA

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The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.”  As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.

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