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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)
(a) Regarding applicants or potential applicants for Affordable Housing, and their household members, a Housing Provider 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 1
(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 Housing Provider.
(b) The Housing Provider shall not require applicants for Affordable Housing to disclose on any housing application the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). Nor shall the Housing Provider inquire on any housing application about the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7).
(c) The Housing Provider shall not require applicants for Affordable Housing to disclose, and shall not inquire into, Conviction History until the Housing Provider has first determined:
(1) that the applicant is legally eligible to rent the housing unit; and
(2) that the applicant is qualified to rent the housing unit under the Housing Provider's criteria for assessing rental history and credit history; provided, however, that this subsection (c)(2) shall apply only if the Housing Provider uses rental history and credit history information in determining qualifications of applicants for housing; and provided further, that this subsection (c)(2) shall not preclude a Housing Provider from obtaining a Background Check Report at the same time as the Housing Provider obtains the rental history report and credit history report for an applicant, so long as the Housing Provider reviews the Background Check Report only after determining based on rental history and credit history that the applicant is qualified to rent the housing unit.
(d) Prior to any Conviction History inquiry, the Housing Provider shall provide a copy of the notice described in Sections 4907(b) and (c) to the applicant.
(e) Prior to obtaining a copy of a Background Check Report, the Housing Provider 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 that such a report is being sought.
(f) In making a decision related to Affordable Housing based on Conviction History, a Housing Provider 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 Housing Provider intends to base an Adverse Action related to Affordable Housing on an item or items in the applicant's Conviction History, prior to taking any Adverse Action the Housing Provider shall provide the applicant with a copy of the Background Check Report, and shall notify the applicant of the prospective Adverse Action and the items forming the basis for the prospective Adverse Action.
(h) If, within 14 days of the date that the notice described in subsection (g) is provided by the Housing Provider to the applicant, the applicant gives the Housing Provider notice, orally or in writing, of evidence of the inaccuracy of the item or items of Conviction History and/or Evidence of Rehabilitation or Other Mitigating Factors, the Housing Provider 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, the Housing Provider shall notify the applicant of the final Adverse Action.
(j) It shall be unlawful for any Housing Provider to engage in any communication related to Affordable Housing that expresses, directly or indirectly, that any person with an arrest or conviction record will not be considered for the rental or lease of real property or may not apply for the rental or lease of real property, except as required by local, state, or federal law. 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.
(Former Sec. 4906 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
CODIFICATION NOTE
(a) The Housing Provider shall state in all solicitations or advertisements for the rental or lease of Affordable Housing placed by the Housing Provider or on behalf of the Housing Provider, that the Housing Provider will consider for tenancy qualified applicants with criminal histories in a manner consistent with the requirements of this Article.
(b) The HRC shall, by the operative date of this Article, publish and make available to Housing Providers, in English, Spanish, and Chinese, and all languages spoken by more than 5% of the San Francisco population, a notice suitable for posting that informs applicants for Affordable Housing of their rights under this Article. The HRC 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 population.
(c) Housing Providers shall post the notice prominently on their website and at any location under their control that is frequently visited by applicants or potential applicants for the rental or lease of Affordable Housing in San Francisco. At a minimum the notice described above shall contain the following information:
(1) A description of those matters identified in Section 4906(a) that may not be considered by the Housing Provider under any circumstances;
(2) A description of the restrictions and requirements that Section 4906 imposes on Housing Providers when inquiring about Conviction History in connection with an application for the rental or lease of Affordable Housing in San Francisco;
(4) The HRC telephone number and email address the applicant or potential applicant may use to make a report if he or she believes the Housing Provider has violated any of the provisions of Article 49.
(Former Sec. 4907 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) It shall be unlawful for an Employer, Housing Provider, or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this Article.
(b) It shall be unlawful for an Employer to refuse to hire an applicant, or to discharge, threaten to discharge, demote, suspend or otherwise take Adverse Action against an employee in retaliation for exercising rights protected under this Article. Such rights include but are not limited to:
(1) the right to file a complaint or inform any person about any Employer's alleged violation of this Article;
(2) the right to inform any person about an Employer's alleged violation of this Article;
(3) the right to cooperate with the OLSE or other persons in the investigation or prosecution of any alleged violation of this Article;
(4) the right to oppose any policy, practice, or act that is unlawful under this Article; or
(5) the right to inform any person of his or her rights under this Article.
(c) It shall be unlawful for a Housing Provider to interrupt, terminate, or fail or refuse to initiate or conduct a transaction involving the rental or lease of residential real property, including falsely representing that a residential unit is not available for rental or lease, or otherwise take Adverse Action against a person in retaliation for exercising rights protected under this Article. Such rights include but are not limited to:
(1) the right to file a complaint or inform any person about any Housing Provider's alleged violation of this Article;
(2) the right to inform any person about a Housing Provider's alleged violation of this Article;
(3) the right to cooperate with the HRC or other persons in the investigation or prosecution of any alleged violation of this Article;
(4) the right to oppose any policy, practice, or act that is unlawful under this Article; or
(5) the right to inform any person of his or her rights under this Article.
(d) Protections of this Section 4908 shall apply to any person who mistakenly but in good faith alleges violations of this Article.
(e) Taking Adverse Action against a person within 90 days of the exercise of one or more of the rights described in this Section 4908 shall create a rebuttable presumption that such Adverse Action was taken in retaliation for the exercise of those rights.
(Former Sec. 4908 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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