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."