I Am Guessing San Francisco Doesn't Provide Any Liability Protection For Employers In Exchange For This

San Francisco has put deep restrictions employers' ability to check the criminal records of people they hire.  Yesterday the Senate blocked the nomination of Debo Adegbile to run the Civil Rights division of the Justice Department.  Senators were concerned about his actions as defense attorney for a man convicted of murdering a Philadelphia police officer.  Honestly, I have no problem with defense attorneys going to extremes to defend their clients.  I was more concerned with his historic support for ideas like this one in San Francisco:

Private sector employers in the City of San Francisco will have to comply with new “ban the box” legislation restricting questions about applicants’ criminal records on applications for employment and during job interviews.

The Fair Chance Ordinance, No. 17-14, prohibits employers with at least 20 employees from inquiring about a job applicant’s criminal history on an employment application, including “checking the box” to indicate criminal convictions or other criminal justice system involvement. It also prohibits covered employers from asking about criminal history during an initial interview. The law applies not only to regular employees, but also those performing contracted or contingent work, or working through a temporary agency. The Ordinance becomes operative on August 13, 2014.

After the initial interview, the Ordinance prohibits the employer from asking the applicant about the following:

  • arrests that did not result in conviction, unless charges remain pending;
  • completion of a diversion program;
  • sealed or juvenile offenses;
  • offense s that are more than seven years old from the date of sentencing; and
  • offenses that are not misdemeanors or felonies, such as infractions.

The employer must provide the applicant with a written notice before making any inquiry into the applicant’s criminal history and display a poster in the workplace developed by the City’s Office of Labor Standards Enforcement (OLSE).

The Ordinance also restricts an employer’s ability to consider criminal history disclosed by an applicant. The information may be used in the selection process only if it has “a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.”

This is just stupid.  First, I cannot tell you how many government forms (e.g. corporate registrations) require me to report my criminal background -- this is outright hypocrisy, holding private employers to  a different standard than public agencies.  If they really are consistent, truly believing that criminal background checks are discriminatory because they have disparate impact, then they should be pushing to remove them for things like gun ownership.  Anyone really believe they will do this?

The bigger issue for businesses is that we don't make these checks because we are jerks, we make them for real financial reasons.  Specifically, we are worried about the health and safety of our employees and customers.  And for those that think that business owners are all evil and wouldn't care about such things, then we certainly care about getting sued for the actions of our employees.  As a business owner I have been made, particularly in California, responsible for any dumbass thing my employees do.  I will get sued if these employees do something wrong.  And worse, can you just see the trial -- plaintiff's attorney is going to be in front of the jury and say things like "this employee has a long criminal record and defendant did not even check, he did not even care about my client's safety."


  1. lelnet:

    Hmm. "Offenses that are not misdemeanors or felonies, such as infractions". Sounds like the sort of thing that an employer would find on an applicant's official driving record from the DMV. Which, last time I checked, employers were _required_ to examine before hiring anyone for a position which would require him to drive a car or truck on the road as part of his work. (I'll admit that I don't know for sure if this is a requirement in California law. But it's a requirement in every state where I've ever worked...and it seems unlikely to me that California could in any respect whatever have laws _less_ burdensome to employers than other states.)

  2. old dude:

    Does this put businesses in a catch 22? Yes. Will they have to violate other laws and risk losing their liability insurance to stay in the clear of this law? Yes. Does San Fran care? No.

    To quote Ayn Rand "There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws"

    This seems similar to the recent EEOC mandate regulating background checks because they result in disparate impact in hiring. That is people with criminal pasts are less likely to be hired than people without criminal pasts.

  3. Curtis:

    It's outrageous and I don't care. I left there because they are the stupidest people in North America and they are doing it all to themselves. Business gives money to these people to elect them. IF they didn't like it they would do something about it.

  4. TM:

    Are employers really asking for stuff other than the standard "Have you ever been convicted of a felony or are you currently under indictment for the same?" I mean baring special positions (such as drivers) and the usual "must be able to pass a random privacy violation", I've never actually seen an application that included any thing beyond what this law would be allowing anyway. Sounds like another case of "doing something" without understanding what "something" is.

  5. Dave Boz:

    This will likely make it more difficult for non-connected people to get a job. Employers will rely more on informal networks and referrals from trusted employees or friends. The city can make certain specific questions illegal, but it can't make the underlying needs of the employer go away (as much as the pols might like to think so).

  6. NL7:

    Tort liability mostly exists to provide victims with access to deep pockets. Notions like guilt, blame, mitigation, prevention, or private property would just muck it up.

  7. NL7:

    More than that, it likely increases the importance of higher education (as a proxy for non-criminality) and not having resume gaps or periods of difficult to verify self-employment (since either could be masking periods of incarceration). It may also cause some quasi-racist or prejudiced people to rely on those stereotypes as a proxy for criminality. Tattoos and weird styles of dress or hair may be targeted as proxies, especially if the company is flush with applicants. The result is likely a persistent, mild pressure in favor of mainstream, affluent, educated applicants and against heterodox, low-income, self-educated applicants.

    Unless there's an easy way to volunteer some certified evidence of non-criminality. For example, volunteering up a completed background check or something like that. Which is not a great subject when you want to sell yourself as an applicant. "See, I haven't been convicted of killing or mugging anybody, and also I can do Excel and Quickbooks."

  8. CT_Yankee:

    This is similar to making it illegal to provide any hint about the neighborhood an apartment is in, or how many occupants it might comfortably hold. Now, instead of seeing immediately that the apartment is not suitable, and moving on to another add, you waste your time and the landlord's calling and asking for the most basic information, or worse yet, actually driving there to see there is no way in hell you are interested. The laws simply make it necessary to delay providing useful information, and waste the time of all involved, but you still need the information. If I read this new law correctly, I can not ask on the form, or ask in an initial interview, so I would set up 1 or 2 "fake" interviews, ones that are so brief they don't waste much of my time (although they waste plenty of the applicant's time to dress, drive to, and make any other arrangements, like childcare). Then I start the actual hiring process, and find out what I need to know, as if this was the "old style" first interview. Making the process very inefficient means that only the most obviously outstanding candidates who appear absolutely perfectly suited by education and experience will get a chance to have the 3rd interview, simply due to the time involved. If there is something that might have made a difference, too bad, because you will never make it to the point where anybody is allowed to ask. The object of the first 2 interviews will be to weed out as many as possible as quickly as possible, so that any time left is spent on only ideal applicants. If I can't use actual information from the application or initial interviews, it looks like a lot of the screening will be based upon first impressions. Note that historically, when employers have a valid concern that they are prohibited from asking about, the easiest and most common solution is to avoid the candidate entirely.

  9. Matthew Slyfield:

    Yes, a classic case of we must do something, this is something, therefore we must do this.

  10. mlhouse:

    Another similar employer problem is worker compensation and medical history. When you hire someone, particularly in the health care field my business is in, you are taking a huge financial risk with respect to workers compensation, particularly when you are in a liberal state that puts all of the burdens on the employer. When it is relevant to the job, the employer should be able to ask health related questions on the application, particularly questions regarding previous work compensation cases were the applicant claimed partial or total disability. But even more importantly, these questions should have relevance. That is, if I asked the question "Did you have a prior claim or back injury?" and hte employee says "No", and it then turns out that they did and now they are trying to claim work comp damages they should be out of luck. The safety of vulnerable clients (mostly older people) and the employees themselves are enough reason to not hire people with previous back injuries.

  11. free_agent:

    It's not as bad as it looks. Here's why:

    Someone is hurt by an employee. The victim checks and finds that the employee had a criminal record at the time of hiring, and so can sue the employer on the grounds that the employer *should have checked* before hiring the employee. Since this is a vaguely-plausible claim for why the employer is ultimately responsible, and the trial goes to the jury. The jury, probably because the victim would be screwed for life otherwise (in the case of a disabling injury) nails the employer, and ultimately the employer's insurance company. Ultimately, all employers pay for it via their insurance premiums ... unless they avoid hiring anyone with a criminal background.

    Now, assume that an employer is *forbidden* to check for criminal background. The victim can't claim that the employer has a responsibility to check the background of employees, and the defendant can get the judge to dismiss the case before it goes to the jury.

  12. msmischief:

    You're an optimist.