San Francisco amended the FCO in the following ways:

• The amendments reduced the number of employees needed to qualify as a covered “employer” from 20 to five (the same number required to qualify for coverage under the statewide law).
• Consistent with the statewide law, the FCO will now prohibit employers from inquiring into an applicant’s criminal history until after a conditional offer of employment has been made. Previously, employers could make such inquiries after an initial job interview.
• The amended FCO now bars employers from inquiring into or considering a “Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing.”
• Penalties for non-compliance with FCO will increase to $500 for a first a violation; $1,000 for a second violation and $2,000 for any subsequent violations. Previously, the maximum penalty was $50. Additionally, if more than one applicant or employee is impacted by an instance of non-compliance, penalties will apply to each impacted applicant or employee.
• Finally, the proposed amendments provide a private right of action for any employee or applicant whose rights have been violated, allowing them to bring a civil action in a court of competent jurisdiction against the employer or other person found violating the FCO.

In light of these amendments, San Francisco employers would be well-advised to review their hiring policies to determine whether these changes will impact their existing procedures and to otherwise ensure compliance with the amended FCO.

The full text of the amended FCO can be found here.

Source: Littler Mendelson, 3/30/2018