Question: The FCO prohibits employers from considering a criminal conviction that is more than 7 years old. How are the 7 years to be measured?
On February 13, 2014, the mayor of San Francisco signed off on amendments to the San Francisco Police Code, Article 49 and Administrative Code, Article 12, which restrict an employer's use of criminal records. These new "Ban the Box" rules became operative for businesses on August 13, 2014. In a previous Compliance Issue Analysis titled, "Ban the Box," we addressed these requirements for employers. In this edition, a nuance in the law has been identified that can be problematic for some employers—how do we measure the time beyond which convictions should be considered?
Our standard reporting complies with California's statewide rule, which requires consumer reporting agencies not to report "records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years ... ." This is different than 7 years from the date of sentencing as required under the FCO.
If you are in an industry, or have positions that are exempt from the San Francisco FCO requirements, the California statewide reporting guidelines, which are more inclusive than the FCO requirements, apply. It is important to point out that compliance with the FCO's requirement to go back 7 years from the date of sentencing can lead to illogical reporting. This is because there can be a situation, for example, where 8 years ago an applicant was sentenced to a 10-year prison term, and while the individual could still be in prison, under the FCO, this conviction/incarceration cannot be reported (because it falls out of scope when measuring 7 years from the date of sentencing).
The more logical reporting practice is pursuant to the statewide regulation that requires reporting from date of disposition, release or parole—which is some time after the end of the adjudication process. In other words, in the example above, if someone is sentenced 8 years ago to a 10-year prison term, we are able to report from the date that the prison term has ended—thereby giving our clients a more complete picture of the conviction information.
Our standard reporting practice is to apply the California statewide reporting guidelines. If you wish us to apply the San Francisco FCO suppression guideline—which is 7 years from the date of sentencing—please contact us to discuss how this can be implemented.
Recently, the San Francisco Human Rights Commission (HRC) issued FAQs that further explain and clarify the FCO. Visit http://sf-hrc.org/fair-chance-ordinance for more information about the Ordinance and visit http://sfgsa.org/modules/showdocument.aspx?documentid=12136 for a copy of the FAQs.