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San Francisco Law Would Expand the Bar on Background Checks

On April 6, 2018 by Schnader in Labor and Employment

By Scott J. Wenner

On January 1, 2018, recreational marijuana officially became legal in California. Three months later, on April 3, 2018, the San Francisco Board of Supervisors passed an ordinance that would bar employers from inquiring about any conviction that arises out of conduct that has been decriminalized since the date of [sentencing].  While the ordinance ostensibly seeks to broadly protect conduct that is now decriminalized, the measure, if signed by the Mayor, would bar employers from asking applicants or employees, at any time, about convictions for growing or using marijuana. The ordinance is an amendment to San Francisco’s Fair Chance Ordinance. San Francisco Mayor Mark Farrell now has ten days to sign or veto the ordinance. If he does not act, the ordinance will become law and will take effect October 1.

The Fair Chance Ordinance was enacted in 2014 to restrict the use of criminal records in making employment decisions.  Under the Fair Chance Ordinance, employers, contractors and subcontractors may only conduct a background check on applicants after making a conditional offer of employment. The penalty for noncompliance is $500 for the first offense, $1,000 for the second offense, and $2,000 thereafter, and applicants have the right to sue over violations. However, it is important to reiterate that the prohibition of inquiries into marijuana-related convictions extends beyond the application and pre-employment period, and includes inquiries made during employment as well.

Employers in San Francisco – and throughout California – must also comply with California’s statewide Fair Chance Act, which took effect on January 1, 2018. That legislation is part of the nationwide “ban the box” movement.

The take-aways: Employers in San Francisco should ensure that employees with human resources responsibilities, as well as supervisors and managers, understand that marijuana-related convictions are off limits not just in making decisions affecting terms and conditions of employment, but also in everyday discussion. After all, if an employer is not aware of a marijuana conviction, it cannot have unlawfully considered one in its decision making.

Also note that nothing in the ordinance prevents an employer from taking action against an employee who is under the influence of marijuana while at work, or from investigating a possible marijuana-related connection between an industrial accident and marijuana – so long as the employer does not include inquiry into past marijuana convictions in its investigation.


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