Fair Chance Ordinance | San Francisco

Updates

NEW! 2023 Annual Reporting Form (ARF) for the Fair Chance Ordinance and Health Care Security Ordinance

Employers covered under by the HCSO and/or FCO are required to submit the Employer Annual Reporting Form to OLSE each year. The 2023 ARF is due on May 3, 2024.

The 2023 ARF instructions and form can be found at www.sf.gov/olsearf.

Overview

The Fair Chance Ordinance (FCO) requires employers to follow strict rules regarding applicants’ and employees’ arrest and conviction record(s) and related information. Employers with 5 or more employees (total worldwide) and City contractors, subcontractors, and leaseholders are covered by the FCO.

The FCO applies to positions that the employee works or will work at least eight hours per week in San Francisco, including temporary, seasonal, part-time, contract, contingent, and commission-based work. It also covers work performed through the services of a temporary or other employment agency, and any form of vocational or educational training - with or without pay.

The Fair Chance Ordinance (FCO) prohibits covered employers from asking about arrest or conviction records until after a conditional offer of employment.

The FCO also prohibits covered employers from ever considering the following:

An arrest not leading to a conviction, except for unresolved arrests.
Participation in a diversion or deferral of judgment program.
A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative.
A conviction in the juvenile justice system.
An offense other than a felony or misdemeanor, such as an infraction.
A conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults).
A conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis.

In addition, the Ordinance requires covered employers to:

State in all job solicitations/ads that qualified applicants with arrest and conviction records will be considered for the position in accordance with this ordinance. (Suggested language: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment qualified applicants with arrest and conviction records.”)
Conspicuously post the Official FCO Notice in every workplace/jobsite under the employer’s control.
Before taking adverse action such as failing/refusing to hire, discharging, or not promoting an individual based on a conviction history or unresolved arrest, give the individual an opportunity to present evidence that the information is inaccurate, the individual has been rehabilitated, or other mitigating factors (following procedures outlined in Police Code Section 4909 or L.E.C. Article 142.4).
Provide yearly compliance reports to the OLSE.

Poster

FCO poster - must be posted at each workplace or job site as of October 1, 2018.
Applies to employers citywide with 5 or more employees and City contractors of any size. The poster must be posted in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace. Employers must also provide a copy of the poster to each applicant or employee before the employer conducts a background check.

Legal Authority

The San Francisco Board of Supervisors passed the Fair Chance Ordinance (FCO) in February, 2014. On April 3, 2018, the San Francisco Board of Supervisors passed an amendment to the FCO. The amendment became operative on October 1, 2018.

Article 49 of the San Francisco Police Code - Employers with 5 or more employees
San Francisco L.E.C. Article 142 - City contractors, subcontractors, and leaseholders

Note that the Fair Chance Ordinance also applies to housing providers: See the Human Rights Commission website for information on that portion of the Ordinance.

The California Fair Chance Act (AB-1008) took effect on January 1, 2018. Like the San Francisco Fair Chance Ordinance (FCO), the state law regulates how employers use arrest and conviction records in employment decisions and includes many provisions similar to the FCO. Employers in San Francisco must comply with both laws.

Resources

FCO Enforcement Report April 2019
summarizes complaints filed with the OLSE regarding consideration of criminal history in employment, as required by Ordinance No. 54-18 (File No. 171170).

Video resources