Effective August 10, 2026, The Amended San Francisco Fair Chance Ordinance Will Impose New Obligations On Covered Employers

In 2014, the City of San Francisco enacted its ban-the-box law, the Fair Chance Ordinance (FCO), which significantly restricted the ability of covered employers¹ to inquire into, and use, criminal records for hiring and other employment purposes. This FCO is more robust than the later-enacted state law, the Fair Employment and Housing Act (FEHA), because, among other things, the FEHA protects applicants only. Effective August 10, 2026, the amended FCO will impose new obligations on covered employers, including barring employers from inquiring about additional types of criminal records (e.g., out-of-state convictions for conduct that is lawful in California). 

Expanded List of Impermissible Inquiries

The amended FCO adds convictions and information that employers can never inquire into or rely on to take adverse action, including an “Abortion-Related Healthcare Conviction,”² a “Drag Conviction,”³ a “Gender Affirming Care Conviction,”⁴ and a “Spontaneous Abortion-Related Conviction.”⁵ According to the “Findings” portion of the ordinance, the amendments respond to the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) and the resulting “patchwork of regressive and harmful state legislation across the country, including bans on abortion without exceptions for rape, incest, or the health of a birthing person, and restrictions on access to contraception.”⁶ The Findings state that the amendments “ensure that no one living in San Francisco is adversely impacted while seeking affordable housing or employment due to cruel or discriminatory laws in other states.”

The FCO also continues to bar employers from inquiring into or considering various other information, including the following: arrests; participation in or completion of a diversion or a deferral of judgment program; a conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative; a conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system; a conviction that is more than seven years old, the date of conviction being the date of sentencing; information pertaining to an offense other than a felony or misdemeanor, such as an infraction; and 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.⁷

Additional Obligations and Penalties

As enacted, the FCO required a form of pre-adverse action notice, i.e., a mandatory notice of the potential adverse action sent before the effective date of the adverse action. The FCO still requires this notice but now requires “confirmation” of receipt of information submitted by the applicant or employee if the submission is timely (i.e., received by the employer within seven days of the employer’s initial notice). The notice of confirmation must be sent within 14 days.

Further, the employer must delay any adverse action “for a reasonable period” and “during that time shall reconsider the prospective Adverse Action in light of the information.” Moreover, if “the applicant or employee makes a reasonable factual showing that the proposed Adverse Action is based solely on a conviction that is not a Directly-Related Conviction, the Employer must withdraw the Adverse Action.”⁸

The FCO increases the penalties available in administrative proceedings by the City’s Office of Labor Standards Enforcement (OLSE) and in civil actions.

Takeaways

Employers covered by California law, particularly in San Francisco and also in Los Angeles and San Diego,⁹ must continue to be mindful of the various overlapping layers of laws that govern inquiries into, and the use, of criminal records as well as the fair credit reporting laws, including the federal Fair Credit Reporting Act (FCRA). The state Civil Rights Department (CRD) remains focused on enforcing compliance with the FEHA’s criminal record protections. Possible action items include:

• Review and update job applications and related forms for impermissible inquiries regarding criminal records.
• Review written and electronic communications about the hiring process, including conditional job offer templates, background check disclosures, and pre-adverse action and adverse action notices.
• Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.

Footnotes

1. The FCO defines the term “Employer” as “any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City.”

2. “‘Abortion-Related Healthcare Conviction’ shall mean an out-of-state Conviction or Unresolved Arrest for conduct that is lawful under California law, and has the primary aim of seeking, performing, providing, receiving, or facilitating the services by or of a physician or other medical professional to terminate a pregnancy.”

3. “‘Drag-Related Conviction’ shall mean an out-of-state Conviction or Unresolved Arrest for conduct that is lawful under California law and that is related to a public, artistic performance characterized by exaggerated displays of femininity or masculinity, in some instances demonstrated by wearing clothing associated with a different gender than the person’s assigned gender at birth.”

4. “‘Gender Affirming Care Conviction’ shall mean an out-of-state Conviction or Unresolved Arrest for conduct that is lawful under California law, and that is related to seeking, performing, providing, receiving, or facilitating medical care, support, or advocacy for the purpose of addressing disparities between any person’s gender identity and their physiology or perceived gender identity, including but not limited to hormone replacement therapy, surgical procedures, and changes to a person’s name or gender marker. This includes a Conviction for use of a gendered facility that corresponds with one’s gender identity and/or playing sports on a team that corresponds with one’s gender identity.”

5. “‘Spontaneous Abortion-Related Conviction’ shall mean an out-of-state Conviction or Unresolved Arrest for conduct that is lawful under California law, and is related to actions taken by a person regarding their own noninduced pregnancy loss before 20 weeks of pregnancy, also known as a miscarriage, or seeking, performing, providing, receiving, or facilitating the services by or of a physician or other medical professional related to such type of pregnancy loss. This includes a Conviction for conduct related to a stillbirth, which is pregnancy loss after 20 weeks of pregnancy.”

6. The “Findings” for the amendments state that: “As of May 2026, 13 states have criminalized abortion and abortion-related healthcare, with several states targeting individuals and healthcare providers performing care with serious criminal penalties. Additionally, 27 states have imposed limitations on gender affirming care, of which 24 states impose various civil, criminal, and/or professional licensing penalties on individuals, including physicians, other healthcare providers, and parents of transgender youth seeking or receiving this care. Two states explicitly ban drag performances if minors are present, and another four states have enacted laws regarding drag performances, such as by limiting them from taking place in public or using public funding.”

7. State law prohibits inquiries into, and consideration of, many but not all of these same records. Cal. Gov’t Code § 12952; Cal. Lab. Code § 432.7.

8. “‘Directly-Related Conviction’ in the employment context shall mean that the conduct for which a person was convicted or that is the subject of an Unresolved Arrest has a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.”

9. See Rod M. Fliegel, San Diego County Adds a New Layer to California’s Complex Web of Laws Regulating the Use of Criminal Records in the Hiring Process, Littler ASAP (Oct. 9, 2024); Rod M. Fliegel, Bill Simmons, and Chad Kaldor, County of Los Angeles Enacts a Sweeping Fair Chance Ordinance for the Unincorporated Areas of the County that Far Exceeds Federal and California Law, Littler ASAP (Mar. 13, 2024); and Jennifer L. Mora, Rod Fliegel, Allen Lohse, and Christina Cila, City of Los Angeles Mayor to Sign Long-Awaited “Ban the Box” Law, Littler ASAP (Dec. 9, 2016).