Policy. | |
Findings. | |
Definitions. | |
Procedures for Use of Criminal History Information in Employment Decisions. | |
Notice and Posting Requirements for Employers. | |
Procedures for Use of Criminal History Information in Housing Decisions. | |
Notice and Posting Requirements for Housing Providers. | |
Exercise of Rights Protected; Retaliation Prohibited. | |
Implementation and Enforcement of Employment Provisions. | |
Employer Records. | |
Implementation and Enforcement of Housing Provisions. | |
Housing Provider Records. | |
Rulemaking. | |
Outreach. | |
Other Legal Requirements. | |
Preemption. | |
City Undertaking Limited to Promotion of General Welfare. | |
Severability. | |
Operative Date. | |
Conflict with Other City Laws. | |
Editor's Notes:
See also Labor and Employment Code , “City Contractor/Subcontractor Consideration of Criminal History in Hiring and Employment Decisions.”
Ordinance 176-13 enacted former Art.49, "Aerial Signs." That article expired pursuant to the terms of its sunset clause (former Sec. 4905) on September 30, 2013.
Ordinance 234-06 repealed former Art. 49, which had pertained to parking station revenue control equipment, in its entirety.
See also Labor and Employment Code , “City Contractor/Subcontractor Consideration of Criminal History in Hiring and Employment Decisions.”
Ordinance 176-13 enacted former Art.49, "Aerial Signs." That article expired pursuant to the terms of its sunset clause (former Sec. 4905) on September 30, 2013.
Ordinance 234-06 repealed former Art. 49, which had pertained to parking station revenue control equipment, in its entirety.
(Former Sec. 4900 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
It is the policy of the City and County of San Francisco to enhance public health and safety by reducing recidivism and its associated criminal justice costs and societal costs, and facilitating the successful reintegration into society of persons with arrest and conviction records. This Article is enacted for the purpose of furthering this policy.
(Former Sec. 4901 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4901 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
After public hearings and consideration of testimony and documentary evidence, the Board of Supervisors finds and declares that the health, safety, and well-being of San Francisco's communities depend on increasing access to employment and housing opportunities for people with arrest or conviction records in order for them to effectively reintegrate into the community and provide for their families and themselves. Barriers to these opportunities for people with arrest or conviction records increase recidivism and thereby jeopardize the safety of the public, disrupt the financial and overall stability of affected families and of our communities, and impede the City's achieving its maximum potential of economic growth. Further, establishing procedures for the lawful use of criminal history information in employment and housing decisions can assist employers and housing providers by preventing the automatic exclusion of individuals who may be qualified, and in some cases well-qualified, employees or tenants.
In San Francisco, as across the country, individuals are often plagued by old or minor arrest or conviction records that discourage them from applying for jobs or housing because a "box" on the application requires disclosure of criminal history information that likely will automatically exclude them from consideration. Precise statistics in this area are difficult to come by, but by any measure the problem is major, affecting a large number of individuals and families. By one measure, some sixty-five million Americans have a criminal record that may show up on a routine background check report. In California, it has been estimated that almost one in four adults have arrest or conviction records. Many thousands of people in our local community are directly impacted by barriers to reintegration based on these records.
In today's digital age, there has been widespread proliferation in the use of criminal background checks, with hundreds of companies offering over the internet low-cost criminal background checks. Surveys have shown that as many as ninety percent of employers and eighty percent of private housing providers conduct background checks. And the information that such background checks may yield can have a devastating impact on the employment and housing opportunities of persons with a criminal history, with damaging spillover effects on families and communities. One study found that two-thirds of employers surveyed in five major U.S. cities would not knowingly hire a person with a criminal record, regardless of the offense. Another study found that a criminal record reduces the likelihood of a job callback or offer by nearly fifty percent. Among those seeking assistance from the San Francisco Public Defender's Clean Slate program, a pool of individuals with a criminal record, only about one-third are employed, and the majority of those employed earn an annual income of $3,000 or less.
The problems presented by employers and housing providers who use a person's criminal history to deny that person employment or housing opportunities are growing rather than diminishing. In response to this challenge, more than fifty cities and counties in the United States have adopted policies that to one degree or another regulate the inquiry into an individual's criminal history, at least as to individuals employed by those localities. Eleven of those localities apply their policies to those who contract with them. The cities of Philadelphia, Newark, Seattle, and Buffalo have applied their policies to all private employers within their boundaries. At the state level, ten states have adopted policies to address this challenge and four states – Hawaii, Massachusetts, Minnesota and Rhode Island – have applied their policies to private employers. The economic rationale often cited for these reforms is to maximize the pool of talented, qualified workers for employers and to fully utilize the productive capacity of people with prior arrests or convictions, for the improvement of the economy.
Regulating inquiries into an individual's criminal history is gaining traction as one facet of the nationwide effort to reduce the recidivism that leads to serial incarceration. A major rationale for this movement is the growing awareness that incarceration has devastating socioeconomic consequences. Researchers have found that more incarceration has the perverse effect of increasing the crime rate in some communities. Children suffer academically and socially, and have decreased economic mobility, after the incarceration of a parent. Incarceration is also linked to homelessness, impacting public health and safety. Twenty-six percent of homeless people surveyed in San Francisco had been incarcerated within the previous twelve months, and an estimated thirty to fifty percent of parolees in San Francisco are homeless.
On October 1, 2011, San Francisco and the rest of California implemented AB 109, a "Realignment" of California's criminal justice system, which seeks to produce budgetary savings by reducing recidivism and promoting rehabilitation. As stated by Governor Edmund G. Brown, Jr. in signing AB 109, cycling people through the revolving door of "state prisons wastes money, aggravates crowded conditions, thwarts rehabilitation, and impedes local law enforcement supervision." Added by AB 109, Section 3451 of the California Penal Code states that counties must focus on alternatives to incarceration that have a proven track record of reducing recidivism. Moreover, Section 17.5 of the Penal Code states that criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety. Removing unnecessary obstacles to employment and housing that impede reintegration and rehabilitation supports the goals for "Realignment."
Lack of employment and housing are significant causes of recidivism; people who are employed and have stable housing are significantly less likely to be re-arrested. For example, one study of 1,600 individuals recently released from prison in Illinois found that only eight percent of those who were employed for a year committed another crime, compared to the state's average recidivism rate of fifty-four percent. In another study, researchers found that from 1992 to 1997, the slightly more than forty percent of the decline in the overall property crime rate could be attributed to the thirty-three percent decline in the unemployment rate during the same period. Still another study in New York reported that a person without stable housing was seven times more likely to re-offend after returning from prison. There is little doubt that a policy designed to improve the employment and housing prospects of persons with arrest or conviction history will enhance their prospects for becoming productive members of the community, and thereby benefitting all of us.
Policies that encourage reintegration and reduce recidivism can also help reduce criminal justice costs. The Legislative Analyst Office estimated that in 2005-2006, counties in California spent on average about $28,000 per year to incarcerate an adult in jail and about $1,250 per year to supervise an adult on probation in the community. One study estimated that in terms of court, prosecution, and law enforcement costs, the County spends an average of $16,379 to process a person who has committed a drug offense through the criminal justice system. When a person successfully reintegrates and does not return to the criminal justice system, these costs are avoided, allowing scarce public dollars to be reinvested in programs that make our communities stronger and safer.
Not only is it a matter of public safety to ensure that workers have job and housing opportunities, but it is also critical for a stable economy. Economists at the Center for Economic and Policy Research used Bureau of Justice Statistics data to estimate that in 2008, the United States had between 12 and 14 million formerly incarcerated people and people with felonies of working age. Citing this population's greatly reduced job prospects, the researchers estimated that the total male employment that year was reduced by 1.5 to 1.7 percentage points and that the cost to the U.S. economy was between $57 and $65 billion in lost output.
The expansion of the criminal justice system and all of its attendant consequences described herein, coupled with the growth of the for-profit criminal background check industry, has created a need for local regulations on the use of arrest and conviction records. On March 29, 2011, the Reentry Council of the City & County of San Francisco, chaired by the Chief Adult Probation Officer, and comprised of that official and the District Attorney, Mayor, Public Defender, and Sheriff urged the enactment of an ordinance to reduce unnecessary barriers to housing and employment for individuals based on arrest or conviction records. This Article is an important part of implementing that general recommendation.
But there are some senses in which this Article is of limited scope. This Article does not intend, and shall not be construed, to require an employer to give preference to anyone or to hire an unqualified person with an arrest or conviction record. Nor does it require a housing provider to give preference to anyone or to rent to an unqualified tenant with an arrest or conviction record. Moreover, this Article shall not be construed to limit an employer or a housing provider's ability to choose the most qualified and appropriate candidate from applicants for employment or housing.
(Former Sec. 4902 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4902 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
For the purposes of this Article 49, the following words and phrases shall mean and include:
"Adverse Action" in the context of employment shall mean to fail or refuse to hire, to discharge, or to not promote any individual; or to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his/her status as an employee. The "Adverse Action" must relate to employment in whole or substantial part in the City. "Adverse Action" in the context of housing shall mean to evict from, fail or refuse to rent or lease real property to an individual, or fail or refuse to continue to rent or lease real property to an individual, or fail or refuse to add a household member to an existing lease, or to reduce any tenant subsidy. The "Adverse Action" must relate to real property in the City.
"Affordable Housing" means any residential building in the City that has received funding from the City, connected in whole or in part to restricting rents, the funding being provided either directly or indirectly through funding to another entity that owns, master leases, or develops the building. Affordable Housing also includes "affordable units" in the City as that term is defined in Article 4 of the Planning Code. Projects that are financed using City-issued tax exempt bonds but that receive no other funding from the City or are not otherwise restricted by the City shall not constitute Affordable Housing.
"Arrest" shall mean a record from any jurisdiction that does not result in a conviction and includes information indicating that a person has been questioned apprehended taken into custody or detained, or held for investigation, by a law enforcement, police, or prosecutorial agency and/or charged with, indicted, or tried and acquitted for any felony, misdemeanor or other criminal offense. "Arrest" is a term that is separate and distinct from, and that does not include, "Unresolved Arrest."
"Background Check Report" shall mean any criminal history report, including but not limited to those produced by the California Department of Justice, the Federal Bureau of Investigation, other law enforcement or police agencies, or courts, or by any consumer reporting agency or business, employment screening agency or business, or tenant screening agency or business.
"City" shall mean the City and County of San Francisco.
"Conviction" shall mean a record from any jurisdiction that includes information indicating that a person has been convicted of a felony or misdemeanor; provided that the conviction is one for which the person has been placed on probation, fined, imprisoned, or paroled. Those matters identified in Section 4904(a) and/or Section 4906(a) about which an Employer and/or Housing Provider may not inquire and as to which they may not base an Adverse Action, are not considered "Convictions."
"Conviction History" shall mean information regarding one or more Convictions or Unresolved Arrests, transmitted orally or in writing or by any other means, and obtained from any source, including but not limited to the individual to whom the information pertains and a Background Check Report.
"Directly-Related Conviction" in the employment context shall mean that the conduct for which a person was convicted or that is the subject of an Unresolved Arrest has a direct and specific negative bearing on that person's ability to perform the duties or responsibilities necessarily related to the employment position. In determining whether the conviction or Unresolved Arrest is directly related to the employment position, the Employer shall consider whether the employment position offers the opportunity for the same or a similar offense to occur and whether circumstances leading to the conduct for which the person was convicted or that is the subject of an Unresolved Arrest will recur in the employment position. "Directly-Related Conviction" in the housing context shall mean that the conduct for which a person was convicted or that is the subject of an Unresolved Arrest has a direct and specific negative bearing on the safety of persons or property, given the nature of the housing. In determining whether the conviction or Unresolved Arrest is directly related to the housing, the Housing Provider shall consider whether the housing offers the opportunity for the same or a similar offense to occur and whether circumstances leading to the conduct for which the person was convicted will recur in the housing, and whether supportive services that might reduce the likelihood of a recurrence of such conduct are available on-site. Those matters identified in Sections 4904(a) and/or Sections 4906(a) about which an Employer and/or Housing Provider may not inquire and as to which they may not base an Adverse Action may not qualify as "Directly-Related Convictions."
“Employer” shall mean any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City, and that employs five or more persons regardless of location, including the owner or owners and management and supervisorial employees. “Employer” includes job placement and referral agencies and other employment agencies. “Employer” does not include the City and County of San Francisco, any other local governmental unit, or any unit of the state government or the federal government.
“Employment” shall mean any occupation, vocation, job, or work, including but not limited to temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, or any form of vocational or educational training with or without pay. The physical location of the employment or prospective employment of an individual as to whom Section 4904 applies must be at least eight hours per week within the City.
"Evidence of Rehabilitation or Other Mitigating Factors" may include but is not limited to a person's satisfactory compliance with all terms and conditions of parole and/or probation (however, inability to pay fines, fees, and restitution due to indigence shall not be considered noncompliance with terms and conditions of parole and/or probation); employer recommendations, especially concerning a person's post-conviction employment; educational attainment or vocational or professional training since the conviction, including training received while incarcerated; completion of or active participation in rehabilitative treatment (e.g., alcohol or drug treatment); letters of recommendation from community organizations, counselors or case managers, teachers, community leaders, or parole/probation officers who have observed the person since his or her conviction; and age of the person at the time of the conviction. Examples of mitigating factors that are offered voluntarily by the person may include but are not limited to explanation of the precedent coercive conditions, intimate physical or emotional abuse, or untreated substance abuse or mental illness that contributed to the conviction.
"Housing Provider" shall mean an entity that owns, master leases, or develops Affordable Housing in the City. "Housing Provider" also includes owners and developers of below market rate housing in the City or "affordable units," as that term is defined in Article 4 of the Planning Code, in the City. Any agent, such as a property management company, that makes tenancy decisions on behalf of the above described entities shall also be considered a Housing Provider.
"HRC" shall mean the Human Rights Commission or any successor department or office. The "Director" of HRC shall mean the department head of the HRC.
"Inquire" shall mean any direct or indirect conduct intended to gather information from or about an applicant, candidate, potential applicant or candidate, or employee, using any mode of communication, including but not limited to application forms, interviews, and Background Check Reports.
"OLSE" shall mean the Office of Labor Standards Enforcement or any successor department or office. The "Director" of OLSE shall mean the head of the OLSE.
"Person" shall mean any individual, person, firm, corporation, business or other organization or group of persons however organized.
"Unresolved Arrest" shall mean an Arrest that is undergoing an active pending criminal investigation or trial that has not yet been resolved. An Arrest has been resolved if the arrestee was released and no accusatory pleading was filed charging him or her with an offense, or if the charges have been dismissed or discharged by the district attorney or the court.
(Former Sec. 4903 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4903 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) Regarding applicants or potential applicants for employment, or employees, an Employer 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, except that this restriction and any limitations imposed in this Article 49 based on the limitation in this subsection (a)(5) shall not apply where the applicant or employee is or will be (A) providing services to or have supervisory or disciplinary authority over a minor, (B) providing services to or have supervisory or disciplinary authority over a “dependent adult,” as that phrase is defined in California Welfare and Institutions Code Section 15610.23 or any successor state law, or (C) providing support services or care to or has supervisory authority over a person 65 years or older;
(6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction, except that an Employer 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 Employer.
(b) The Employer 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 Employer 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). An Employer 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 Employer 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 4904.
(c) The Employer 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. The Employer 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 Employer shall provide a copy of the notice described in Section 4905(b) to the applicant or employee.
(e) Prior to obtaining a copy of a Background Check Report, the Employer shall comply with all state and federal requirements including but not limited to those in the 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, an Employer 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 an Employer 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 Employer shall provide the applicant or employee with a copy of the Background Check Report, if any, and shall notify the applicant or employee of the prospective Adverse Action and the 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 Employer to the applicant or employee, the applicant or employee gives the Employer 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 Employer 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, an Employer shall notify the applicant or employee of the final Adverse Action.
(j) It shall be unlawful for any Employer to engage in any communication that is intended and reasonably likely to reach persons who are reasonably likely to seek employment in the City, 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 4904 shall be construed to prohibit an Employer 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.
(Former Sec. 4904 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4904 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) The Employer shall state in all solicitations or advertisements for employees that are reasonably likely to reach persons who are reasonably likely to seek employment in the City, that the Employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of this Article 49.
(b) The OLSE shall, by the operative date of this Article 49, publish and make available to Employers, in English, Spanish, Chinese, and all languages spoken by more than 5% of the San Francisco workforce, a notice suitable for posting by Employers in the workplace informing applicants and employees of their rights under this Article 49. The OLSE shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco workforce.
(c) Employers shall post the notice described in subsection (b) in a conspicuous place at every workplace, job site, or other location in San Fran- cisco under the Employer’s control frequently visited by their employees or applicants, and shall send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agree- ment or understanding, that is applicable to em- ployees in San Francisco. The notice shall be posted in English, Spanish, Chinese, and any lan- guage spoken by at least 5% of the employees at the workplace, job site, or other location at which it is posted.
(Former Sec. 4905 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4905 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
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