Reprinted with permission from Employment Screening Services
By Todd M. Higey, Esq., General Counsel for Employment Screening Services, Inc.
It is the considered judgment of the City of San Francisco that those convicted of crimes should have a fair shot at reentry into the work-a-day world. They have paid their penance and now deserve a second chance. Apparently, private employers in San Francisco don’t agree. So, the City is exercising its prerogative as the local sovereign to compel these employers – as of the 13th day of August 2014 (more on the subject of the number thirteen below) – to participate in the City’s programme of the reentry of former criminals into the workforce. Those employers who don’t comply will themselves become criminals – well, perhaps not criminals, but certainly subject to administrative penalties and civil enforcement by the City.
Who is required to participate in this programme of re-entry? All employers who have at least twenty employees (anywhere in the world) and who also do business in the City of San Francisco. If you don’t fall into this category, you may wish to keep reading, as this sort of programme is favored by the Federal Interagency Re-entry Council and, depending upon the results in cities like San Francisco, these kind of laws may spread across the nation, to a locale near you.
Who is protected by this programme? All applicants and all prospective applicants. In other words, just about anybody looking to work within the city limits of San Francisco.
So what must an employer do? There are thirteen – we know, auspicious number – requirements.
First, an employer can never, ever ask an applicant about:
- An arrest not leading to a conviction;
- Participation in a program of deferral or diversion of judgment;
- Expunged convictions;
- Juvenile convictions;
- Convictions of any sort older than seven years, or
- Information about offenses that aren’t felonies or misdemeanors.
Not only can’t you ask about these things, but if you happen to find out that an applicant has one of these things, you must pretend you don’t know it, and you must definitely not act upon that information.
Second, if you want to ask about convictions or unresolved arrests, you can’t do it on the application for employment. You have to wait. You can’t even ask whether your prospective employee is an ex-felon during your first “live” interview.
Third, if you just have to know whether the fellow you want to hire engaged in behavior that led to a criminal conviction in the past seven years, then you can ask him after you interview him or after you make him a “conditional offer of employment.”
Fourth, when you finally do decide to ask the applicant about her criminal history, you must supply her with a written notice that informs her of the new obligations imposed upon you, as the employer, when it comes to considering her criminal background. (The City will kindly provide you with a sample copy of the notice for your use. More on that below.)
Fifth, if you decide to do a criminal background check, then you must be sure to comply with all Federal and California state laws regarding the procurement of such reports, and you must notify the applicant that you are going to get the report. (This requirement seems a bit redundant, considering the federal Fair Credit Reporting Act.)
Sixth, if you should decide that this ex-con applicant is not really the right fit for your company, you must perform – and document – an “Individualized Assessment” of the applicant’s situation. What does that mean, you ask? We are glad you asked; it means this:
You must determine whether the prior crime “directly relates” to the job. We’re about to give you some legalese: Directly relates means the conduct that constituted the crime “has a direct and specific negative bearing on the [applicant’s] ability to perform the duties or responsibilities necessarily related to the employment position.” The City explains what this means by using even more legalese: “[T]he employment position offers the opportunity for the same or similar offense to occur and . . . circumstances leading to the conduct for which the person was convicted will recur in the employment position.” We know . . . helpful. Here is the plain language interpretation: If the new job would reasonably tempt the ex-convict to repeat his crime, then you don’t have to hire him.
Even if you’ve determined that the new job will tempt the person to repeat her criminal misdeeds, you are still not done. You must also consider how old the crime is. Since you’re limited to seven years already, we suppose that means a six year old crime is stale and should not be given the same weight as a one year old crime. You must also consider evidence of inaccuracy. If the ex-convict can give you a good reason why he really didn’t commit the crime he was convicted of, then you need to weigh that factor in his favor, since the City feels he should be eligible for re-entry.
Beyond this, an employer must consider “rehabilitation evidence” before turning down the applicant. Did she comply with the terms of her parole or probation? And if she didn’t, did she have a good reason for not doing so? If she couldn’t pay her fines, fees or penalties, was it because she was indigent? Being poor is not non-compliance with the terms of one’s sentence and shouldn’t be held against a criminal.
If the applicant ex-convict can provide glowing references from a previous employer, or a community leader, or a counselor, then you must consider those factors in assessing the applicant’s state of rehabilitation.
Has the applicant gone back to school and improved himself since serving time for his crime? If so, this is a good thing and weighs in his favor.
And how old was the applicant when she was convicted? Young adult criminals should be treated less harshly, according to the City.
Don’t forget to consider “Mitigating Factors.” Was the former criminal “coerced” into his life of crime? Was she herself the victim of physical or emotional abuse? Was he in the grip of untreated substance abuse or mental illness? If so, then private employers ought to extend leniency to these applicants.
Seventh, if you should decide not to hire the applicant, or to terminate her after having made a conditional offer of employment, you must notify her of the reasons why you are not employing her. And if you ran a background check report, you need to give her a copy of it.
Eighth, if, within seven days, the applicant disputes his status as a former criminal, or if he offers evidence of rehabilitation or mitigation, then you must delay firing him for a “reasonable” period of time and reconsider your decision.
Ninth, if you still want to fire the applicant or employee, you must notify her of your action. (Why you would not notify him is a beyond us, but there you are.)
Tenth, at no time during this process can you say, orally or in writing, in advertising or behind closed doors, that you will not hire ex-convicts. Don’t even think about it.
Eleventh, you should tell the public, when advertising, that you will hire former criminals. In fact, the City will provide you with a form that you should give to applicants that will tell them what sort of rehabilitation or mitigation evidence they can supply for your consideration. You must also give them the City’s phone number so they know who to call when you don’t hire them. And last but not least, you have to post the notice if you have an office in San Francisco.
Twelfth, as you would expect, it is unlawful to interfere with an applicant’s exercise of her rights under this city ordinance or to retaliate against her for so exercising her rights. This is standard fare that we should already know and adhere to. If you do make the unwise decision to interfere with or retaliate against an applicant, the City’s Office of Labor Standards Enforcement can investigate and fine you penalties ranging from $50 to $100 per employee per occurrence. Beyond this, the City itself can file suit against an employer, seeking reinstatement of the applicant-employee, back pay, lost benefits, injunctive relief and liquidated damages of $50 per day, per employee. The City means business. (Pun intended.)
And thirteenth, you must maintain records of the previous twelve items. This means you had better document the whole process. What did your job posting say? When did you first ask about prior criminal convictions? Did you give the applicant an opportunity to justify his conduct? Did you document your consideration of why she might be tempted to commit the crime again in the new job? Did you explain why the rehabilitation and mitigation evidence don’t overcome the concern for recidivism?
It has been said that the States and Cities are “Laboratories of Democracy.” San Francisco is certainly living up to this idea. If you are an employer doing business in that city, share with us your experiences with this ordinance. Certainly when it comes to background screening, you can rest assured the ESS’s product will comply with the requirements of this ordinance.
As always, don’t forget that none of this is formal legal advice. The foregoing is more of a friendly, “Head’s up, this is coming your way, please talk to your lawyer if you have any serious concerns.”