Sec. 142.1. Definitions.
Sec. 142.2. Applicability of Article to Contractors and Subcontractors.
Sec. 142.3. All Contracts and Property Contracts to Include Provision Requiring Compliance with this Article.
Sec. 142.4. Procedures for Contractor and Subcontractor Use of Criminal History Information in Employment Decisions.
Sec. 142.5. Notice and Posting Requirements for Contractors and Subcontractors.
Sec. 142.6. Implementation and Enforcement.
Sec. 142.7. Contractor and Subcontractor Records.
Sec. 142.8. Nonapplicability, Exceptions, and Waivers.
Sec. 142.9. Preemption.
Sec. 142.10. Severability.
Sec. 142.11. Operative Date.
*Editor’s Notes:
Former Administrative Code Chapter 12T (“City Contractor/Subcontractor Consideration of Criminal History in Hiring and Employment Decisions”) was redesignated as Labor and Employment Code Article 142 by Ord. 221-23, File No. 230835, approved November 3, 2023, effective December 4, 2023, and operative January 4, 2024.
See also Police Code Art. 49, “Procedures for Considering Arrests and Convictions and Related Information in Employment and Housing Decisions.”
For the purposes of this Article 142, the following words and phrases shall mean and include:
“Adverse Action” shall have the same meaning as in Police Code Section 4903.
“Arrest” shall have the same meaning as in Police Code Section 4903.
“Background Check Report” shall have the same meaning as in Police Code Section 4903.
“Bid” shall mean a bid or proposal submitted to the City in response to an invitation for bids or a request for proposals. “Bid” shall also mean a response to a request for qualifications if no further ranking prior to Contractor selection is contemplated by the procurement process.
“City” shall mean the City and County of San Francisco.
“Contract” shall mean an agreement for public works or improvements to be performed, or for goods or services to be purchased or grants to be provided, at the expense of the City or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City. “Contract” does not include (1) Property Contracts, (2) agreements entered into pursuant to settlement of legal proceedings, (3) contracts for urgent litigation expenses as determined by the City Attorney, or (4) contracts for a cumulative amount of $5,000 or less per vendor in each fiscal year.
“Contracting Officer” shall mean the department head or designee of the department head.
“Contractor” shall mean any person or persons, firm, partnership, corporation, or combination thereof who enters into a Contract or Property Contract with the City.
“Conviction” shall have the same meaning as in Police Code Section 4903.
“Conviction History” shall have the same meaning as in Police Code Section 4903.
“Directly-Related Conviction” shall have the same meaning as in Police Code Section 4903.
“Employment” shall have the same meaning as in Police Code Section 4903.
“Evidence of Rehabilitation or Other Mitigating Factors” shall have the same meaning as in Police Code Section 4903.
“HRC” and “Director of HRC” shall have the same meaning as in Police Code Section 4903.
“Inquire” shall have the same meaning as in Police Code Section 4903.
“OCA” shall mean the Office of Contract Administration or any successor department or office. The “Director” of OCA shall mean the head of the OCA.
“OLSE” and “Director of OLSE” shall have the same meaning as in Police Code Section 4903.
“Person” shall have the same meaning as in Police Code Section 4903.
“Property Contract” shall mean a written agreement, including a lease, permit, or license, through which the City gives to a person or entity the right to exclusively use or occupy real property owned or controlled by the City for a period of more than 29 days in any calendar year, but excluding the following (collectively, “Excluded Property Contracts”): (1) an agreement through which the City gives the right to use or occupy real property owned or controlled by the City to a public entity or public utility; (2) a revocable at-will permit regardless of the ultimate duration of such permit, unless the permittee engages in a for-profit activity on the City property; (3) regulatory permits, including street or public right of way construction, excavation, and use permits; (4) agreements governing the use of City property which constitutes a public forum for activities that are primarily for the purpose of espousing or advocating causes or ideas and that are generally recognized as protected by the First Amendment to the U.S. Constitution; or (5) agreements for activities which are primarily recreational in nature, unless the user engages in a for-profit activity on the City property.
“Subcontract” shall mean an agreement to (i) provide goods and/or services, including construction labor, materials or equipment, to a Contractor, if such goods or services are procured or used in the fulfillment of the Contractor’s obligations arising from a Contract with the City, or (ii) to transfer the right to occupy or use all or a portion of a real property interest subject to a Property Contract to a Subcontractor and pursuant to which the Contractor remains obligated under the Property Contract.
“Subcontractor” shall mean any person or persons, firm, partnership, corporation or any combination thereof who enters into a Subcontract with a Contractor. Such term shall include any person or entity who enters into an agreement with any Subcontractor for the performance of 10 percent or more of any Subcontract.
“Unresolved Arrest” shall have the same meaning as in Police Code Section 4903.
(Added as Administrative Code Sec. 12T.1 by Ord. 17-14, File No. 131192, App. 2/14/2014, Eff. 3/16/2014, Oper. 8/13/2014; amended by Ord. 249-14, File No. 140878, App. 12/17/2014, Eff. 1/16/2015; Ord. 54-18, File No. 171170, App. 4/13/2018, Eff. 5/14/2018, Oper. 10/1/2018; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(Former Administrative Code Sec. 12T.1 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
The requirements of this Article shall only apply to a Contractor’s or Subcontractor’s operations to the extent those operations are in furtherance of performing a Contract or Property Contract with the City. Accordingly, the protections of this Article apply only to applicants and employees who would be or are performing work in furtherance of performing a Contract or Property Contract with the City. If there is a conflict between the requirements of this Article and any City law, rule or regulation existing as of the effective date of Ordinance No. 249-14 amending this Article, the requirements of this Article shall prevail.
(Former Administrative Code Sec. 12T.2 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
All contracting agencies of the City, or any department thereof, acting for or on behalf of the City, shall include in all Contracts and Property Contracts hereinafter executed or amended in any manner or as to any portion thereof, a provision requiring Contractor’s compliance with this Article and shall require such Contractor to include a similar provision in all Subcontracts executed and amended thereunder, and failure to do so shall constitute a material breach of contract.
(Former Administrative Code Sec. 12T.3 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
(a) Regarding applicants or potential applicants for employment, or employees, a Contractor or Subcontractor shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received base an Adverse Action in whole or in part on:
(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section 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;
(5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing;
(6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction, except that a Contractor or Subcontractor may inquire about, require disclosure of, base an Adverse Action on, or otherwise consider an infraction or infractions contained in an applicant or employee’s driving record if driving is more than a de minimis element of the employment in question; or
(7) 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.
Accordingly, the matters identified in this subsection (a) may not be considered in any manner by the Contractor or Subcontractor.
(b) A Contractor or Subcontractor shall not require applicants or potential applicants for employment or employees to disclose on any employment application the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). Nor shall the Contractor or Subcontractor inquire on any employment application about the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). A Contractor or Subcontractor may ask on an employment application for an applicant, potential applicant, or employee’s written consent for a Background Check so long as the application includes a clear and conspicuous statement that the Contractor or Subcontractor will not itself conduct or obtain from a third party the Background Check until after a conditional offer of employment in accordance with subsection (c) of this Section 142.4.
(c) A Contractor or Subcontractor shall not require applicants or potential applicants for employment, or employees, to disclose, and shall not inquire into or discuss, their Conviction History or an Unresolved Arrest until after a conditional offer of employment. A Contractor or Subcontractor may not itself conduct or obtain from a third party a Background Check until after a conditional offer of employment.
(d) Prior to any Conviction History inquiry, the Contractor or Subcontractor shall provide a copy of the notice described in Section 142.5(b) to the applicant or employee.
(e) Prior to obtaining a copy of a Background Check Report, the Contractor or Subcontractor shall comply with all state and federal requirements including but not limited to California Investigative Consumer Reporting Agencies Act (ICRAA), California Civil Code sections 1786 et seq., and the Federal Consumer Reporting Act (FCRA), 15 United States Code sections 1681 et seq., to provide notice to the applicant or employee that such a report is being sought.
(f) In making an employment decision based on an applicant’s or employee’s Conviction History, a Contractor or Subcontractor shall conduct an individualized assessment, considering only Directly-Related Convictions, the time that has elapsed since the Conviction or Unresolved Arrest, and any evidence of inaccuracy or Evidence of Rehabilitation or Other Mitigating Factors.
(g) If a Contractor or Subcontractor intends to base an Adverse Action on an item or items in the applicant or employee’s Conviction History, prior to taking any Adverse Action the Contractor or Subcontractor shall provide the applicant or employee with a copy of the Background Check Report, and shall notify the applicant or employee of the prospective Adverse Action and the item or items forming the basis for the prospective Adverse Action.
(h) If, within seven days of the date that the notice described in subsection (g) is provided by the Contractor or Subcontractor to the applicant or employee, the applicant or employee gives the Contractor or Subcontractor notice, orally or in writing, of evidence of the inaccuracy of the item or items of Conviction History or any Evidence of Rehabilitation or Other Mitigating Factors, the Contractor or Subcontractor shall delay any Adverse Action for a reasonable period after receipt of the information and during that time shall reconsider the prospective Adverse Action in light of the information.
(i) Upon taking any final Adverse Action based upon the Conviction History of an applicant or employee, a Contractor or Subcontractor shall notify the applicant or employee of the final Adverse Action.
(j) A Contractor or Subcontractor shall not engage in any communication that is intended and reasonably likely to reach persons who are reasonably likely to seek employment to be performed under a Contract or Property Contract and that expresses, directly or indirectly, that any person with an Arrest or Conviction will not be considered for employment or may not apply for employment. For purposes of this subsection (j), engaging in a communication includes but is not limited to making a verbal statement or producing or disseminating any solicitation, advertisement, or signage.
(k) Nothing in this Section 142.4 shall be construed to prohibit a Contractor or Subcontractor from observing the conditions of a seniority system or an employee benefit plan, provided such systems or plans are not a subterfuge to evade the purposes or requirements of this Article.
(Added as Administrative Code Sec. 12T.4 by Ord. 17-14, File No. 131192, App. 2/14/2014, Eff. 3/16/2014, Oper. 8/13/2014; amended by Ord. 249-14, File No. 140878, App. 12/17/2014, Eff. 1/16/2015; Ord. 54-18, File No. 171170, App. 4/13/2018, Eff. 5/14/2018, Oper. 10/1/2018; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(Former Administrative Code Sec. 12T.4 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
(a) The Contractor or Subcontractor shall state in all solicitations or advertisements for employees that are reasonably likely to reach persons who are reasonably likely to seek employment to be performed under a Contract or Property Contract, that the Contractor or Subcontractor will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of this Article.
(b) The OLSE shall, by the operative date of this Article, publish and make available to Contractors and Subcontractors, in English, Spanish, Chinese, and all languages spoken by more than 5% of the San Francisco workforce, a notice substantially similar in form and content to the notice described in Police Code Section 4905(b). However, the notice shall cite this Article rather than Police Code Article 49 as the applicable legal authority for the rights and obligations described therein.
(c) Contractors and Subcontractors shall post the notice described in subsection (b) in a conspicuous place at every workplace, job site, or other location under the Contractor or Subcontractor’s control at which work is being done or will be done in furtherance of performing a Contract or Property Contract with the City. The notice shall be posted in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace, job site, or other location at which it is posted.
(Former Administrative Code Sec. 12T.5 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
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